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WORKERS' COMPENSATION - Claims - Boards and tribunals - Evidence

Tuesday, July 14, 2020 @ 5:46 AM  

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Appeal by Best from a decision of the Workers’ Compensation Appeals Tribunal affirming denial of reimbursement for the cost of medical marijuana. From 2011 onward, the appellant used dried cannabis under a Health Canada approval to alleviate chronic upper back and neck pain caused by a 2002 workplace injury. In 2017, the appellant asked the Workplace Health, Safety and Compensation Commission to pay the cost of her medical marijuana. The Commission denied the request on the basis that its medical adviser indicated medical marijuana was not a requirement in relation to the appellant’s compensable injury. The appellant provided further medical information. The Commission requested a review by Canada Health Solutions which opined that the use of medical marijuana was not warranted. The Commission affirmed its denial. On appeal, the Tribunal ruled that the evidence was insufficient to establish that medical marijuana was a necessary medical aid in respect of the appellant’s 2002 workplace accident. Best appealed.

HELD: Appeal allowed. The Appeals Tribunal accepted the appellant’s evidence that she derived a therapeutic benefit from the use of medical marijuana for her chronic myofascial pain. However, the Appeals Tribunal erred in characterizing and disregarding that evidence as anecdotal in nature and insufficient to establish the necessity of medical marijuana in the face of an absence of strong medical evidence to support any use. The Tribunal’s approach reflected an error in failing to decide the case on its merits. A decision based on the merits was not confined to an inquiry into whether there was evidence of research that established efficacy of medical marijuana for a particular use. The appellant established, on a balance of probabilities, that the prescribed use of medical marijuana in connection with her chronic pain was necessary, within the meaning of the Act. She used it in the manner that was substantially consistent with the recommendations advanced by the Commission in those situations where the Commission paid for its use. Any claim for reimbursement prior to March 2017 and after December 2018 was returned to the Appeals Tribunal for determination.

Best v. New Brunswick (Workplace Health, Safety and Compensation Commission), [2020] N.B.J. No. 124, New Brunswick Court of Appeal, J.E. Drapeau, B.V. Green and R.T. French JJ.A., June 11, 2020. Digest No. TLD-July132020003