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WORKERS’ COMPENSATION - Boards and tribunals - Powers

Wednesday, October 06, 2021 @ 5:45 AM  

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Appeal by the Commission from a decision of the Workers’ Compensation Appeals Tribunal allowing the respondent’s appeal from the Commission’s denial of his request for coverage for the cost of medical marijuana for the treatment of his post traumatic stress disorder. The respondent, a former correctional officer, experienced several traumatic events and was diagnosed with PTSD, panic disorder, agoraphobia and major depressive disorder. When he was examined by a psychiatrist selected by the Commission to determine an appropriate course of treatment, the respondent had not been on any anti-depressant for months and was only taking the medical marijuana. The psychiatrist noted the respondent was still very symptomatic and recommended an immediate decrease in the use of marijuana concurrent with the initiation of anti-depressant strategies. He was of the view there needed to be a progressive downward titration of the marijuana given the respondent’s positive dependence on it. The respondent did not follow any of these recommendations. Based on the psychiatrist’s report noting the science-based evidence that regular marijuana use was associated with increased risks of anxiety, depression and psychotic illness while also worsening the courses of these disorders, the Commission denied funding for it. The Commission confirmed its decision to not fund the cost of medical marijuana based on its Cannabis (Marijuana) for Medical Purposes Policy. The Policy did not allow treatment with the use of medical marijuana except for specific and limited exceptions that did not include PTSD and major depression. At the hearing before the Appeals Tribunal, the respondent testified medical marijuana kept him functional, that he would never try any of the medications previously prescribed as they made him suicidal and that, but for the marijuana, he would not be here today. The acceptance of the appeal resulted from the chairperson’s interpretation of harm reduction as contained in the Policy finding that medicinal cannabis was indicated based on harm reduction to prevent death or other significant harmful consequences. The Policy, in part, limited the concept of harm reduction to assisting with the reduction of a worker’s dependence on opioids. The Commission argued the chairperson erred in law with respect to her interpretation of harm reduction as contained in the Policy.

HELD: Appeal allowed. The chairperson significantly expanded the harm reduction exception in the Policy and thereby erred in law. Her interpretation was inconsistent with the defined parameters of harm reduction in the Policy. The respondent had risk of dependency on other drugs such as benzodiazepines since he was longer taking them by the time the Commission refused to fund the medicinal cannabis, and the record did not establish he developed any dependency on this drug. The chairperson, in interpreting the Policy, erred in law when she placed significant and, erroneous emphasis on the respondent’s evidence that, in his opinion, medicinal marijuana saved his life and he likely would have committed suicide without it. It was inappropriate for the chairperson to ignore the medical opinions obtained by the Commission that specifically dealt with the respondent’s case and instead accept literature that supported the chairperson’s own views without explanation. This was not a proper exercise of her discretion, and it inappropriately interfered with the Commission’s exclusive jurisdiction to determine whether funding would be provided to the respondent for medical marijuana.

New Brunswick (Workplace Health, Safety and Compensation Commission) v. Boudreau, [2021] N.B.J. No. 224, New Brunswick Court of Appeal, K.A. Quigg, B.L. Baird and C.A. LeBlond JJ.A., September 9, 2021. Digest No. TLD-October42021005