QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 403 Date: 2013 11 14 Docket: Q.B. 620 of 2012 Judicial Centre: Regina BETWEEN: CAREY HEILMAN and THE WORKERS’ COMPENSATION BOARD Counsel: Nicole L. Sarauer for the applicant Leonard D. Andrychuk Q.C. for the respondent JUDGMENT WHITMORE J.A. November 14, 2013 Ex officio INTRODUCTION [1] This is an application for judicial review of decision of The Workers’ Compensation Board (the “Board”) denying the applicant reimbursement for the cost of the applicant’s medical marihuana. [2] The applicant suffers from chronic back pain and muscle spasms as result of work related injuries incurred in 1981 and 1982. The respondent concedes the applicant is entitled to compensation under The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1 (the “Act”). [3] The applicant has been prescribed numerous medications for pain over the years with varying degrees of success. In 2002, on the recommendation of his physician, he commenced using medical marihuana. The marihuana provides him more effective relief without the severe side effects that accompany other drugs. His primary method of marihuana consumption is through baked goods or vaporizer, although he smokes it when other methods are not readily available. [4] In 2011, the Board denied the applicant reimbursement for the cost of his medical marihuana. Upon an application for judicial review of that decision, Justice McMurtry found that the Board improperly fettered its discretion by relying on the submissions of the Board’s medical consultant and medical department. See: Heilman v. Saskatchewan (Workers’ Compensation Board), 2012 SKQB 361 (CanLII), 404 Sask. R. 134. Justice McMurtry remitted the matter to the Board. The applicant brings this application to review the Board’s decision to once again deny reimbursement to the applicant. 1. What is the standard of review of the Board’s decision to deny reimbursement of Mr. Heilman’s medical marihuana costs? 2. Did the Board exceed its jurisdiction in enacting Policy Statement of POL 10/2011 to deny reimbursement of medical marihuana claims in all cases? 3. Does the Board have the jurisdiction to deny reimbursement for specific medical treatment? 4. Did the Board’s decision to deny reimbursement to Mr. Heilman meet the appropriate standard of review? 5. Was the Board’s decision made for an improper purpose? Did the Board base its decision on irrelevant considerations? 1. What is the standard of review of the Board’s decision to deny reimbursement of Mr. Heilman’s medical marihuana costs? [5] In the earlier decision referred to, Justice McMurtry determined that the applicable standard of review was that of reasonableness. The parties agree that reasonableness is the appropriate standard of review for this matter as well. [6] Dunsmuir v. New Brunswick, 2008 SCC (CanLII), [2008] S.C.R. 190 (“Dunsmuir”) established that there are only two standards of review, that of reasonableness and that of correctness. In Mellor v. Saskatchewan (Workers’ Compensation Board), 2012 SKCA 10 (CanLII), 385 Sask. R. 210 (“Mellor”) at para. 19, the Court held that the standard of review for decisions of The Workers’ Compensation Board will be reasonableness if the question before the Board “...relates to the interpretation and application of the Act, is within the Board’s expertise and does not raise issues of general legal importance...”. In the case before me, the Board is interpreting and applying the Act. There are no issues of general legal importance. Thus the appropriate standard of review in this matter is the standard of reasonableness. [7] In Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 CanLII 316 (SCC), [1997] S.C.R. 890, [1997] S.C.J. No. 74 (QL), the Supreme Court specifically found that the Saskatchewan Workers’ Compensation Board has significant expertise in dealing with all aspects of the workers’ compensation system. [8] In reviewing the reasonableness standard in Mellor, the Court of Appeal held that decision is reasonable if it falls within the range of “possible acceptable outcomes”. In Dunsmuir, at para. 47, it was held that “...[i]n judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process. But it is also concerned with whether the decision falls within range of possible, acceptable outcomes which are defensible in respect of the facts and law.” [9] In the case of Canada (Director of Investigation and Research Competition Act) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] S.C.R. 748, [1996] S.C.J. No. 116 (QL) at para. 56, it was held that decision is unreasonable where it “is not supported by any reasons that can stand up to somewhat probing examination.” In the case of Law Society of New Brunswick v. Ryan, 2003 SCC 20 (CanLII), [2003] S.C.R. 247 at para. 55, it was held that “[a] decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.” 2. Did the Board exceed its jurisdiction in enacting Policy Statement of POL 10/2011 to deny reimbursement of medical marihuana claims in all cases? [10] The Board has approved Policy 10/2011 which contains specific policy for the reimbursement of medications which includes policy regarding reimbursement for medical marihuana, which does not allow reimbursement for medical marihuana. [11] Statement of Policy 10/2011 reads as follows: 5. The WCB will not reimburse the costs of obtaining, growing, or using medical marihuana (i.e., the smoked form). [12] The applicant argues that the prohibition on the reimbursement of the cost of medical marihuana exceeds the Board’s jurisdiction. Although the applicant acknowledges that clause was not specifically mentioned in the decision, he argues the clause was influential in the decision and should be held ultra vires. [13] The respondent argues that clause is not relevant as the Board did not apply or rely on it in reaching its decision. The respondent states that the Board’s decision was based on its authority under the Act rather than relying on clause 5. The respondent further states that the Board decided the issue of reimbursement by asking whether, based on the evidence, medical marihuana was “appropriate and needed” to treat Mr. Heilman. [14] The Board found that it had the power to create POL 10/2011 as an exercise of the exclusive jurisdiction granted to it under s. 22(1) of the Act. The respondent argues there is no evidence that the Board relied on clause to deny reimbursement. Rather, the decision was based on medical research and on the fact that Mr. Heilman had not tried the marihuana drug derivative Sativex. [15] am in agreement with the position of the respondent. While it is certainly arguable that the Board cannot rely on blanket prohibition to deny the reimbursement of particular drug, this does not appear to be the case here. The Board did not rely on Policy Statement 5 or even mention it in its decision, but based its decision on the evidence before it. Therefore, even if Policy Statement is ultra vires, it does not decide this matter. It is not necessary to decide whether Policy Statement 5 is ultra vires. 3. Does the Board have the jurisdiction to deny reimbursement for specific medical treatment? [16] The relevant statutory provisions of the Act are as follows: 21.1(1) The board shall: ... (b) arrange to provide any medical aid or treatment that may be required in the circumstances as result of injuries to workers; 22(1) The board shall have exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which power, authority or discretion is conferred upon the board and, without limiting the generality of the foregoing, the board shall have exclusive jurisdiction to determine: (a) whether any condition or death in respect of which compensation is claimed was caused by an injury; (b) whether any injury has arisen out of or in the course of an employment; (c) the existence and degree of functional impairment to worker by reason of an injury; (d) the permanence of functional impairment resulting from an injury; (e) the degree of diminution of earning capacity caused by an injury; (f) the average earnings; (g) the existence of the relationship of any member of the family of worker and the degree of dependency; (h) whether any industry or any part, branch or department of any industry is within the scope of this Act and the class to which it is assigned; (i) whether any worker is within the scope of this Act. (2) The decision and finding of the board under this Act upon all questions of fact and law are final and conclusive and no proceedings by or before the board shall be restrained by injunction, prohibition or other proceeding or removable by certiorari or otherwise in any court. (3) Notwithstanding subsection (2), the board may reconsider any matter that it has dealt with or may rescind, alter or amend any decision or order it has made. 106(1) Every worker who is entitled to compensation or who is disabled only on the day of the accident shall be entitled without charge to: (a) any medical aid that may be necessary as result of the injury; (b) any other treatment by health care professional; (c) any artificial member or apparatus that may be necessary as result of the injury, and to have any artificial limbs and eyes and any surgical appliances such as belts, braces, supports and orthopaedic shoes, whether provided before or after this section comes into force, repaired, maintained and renewed when necessary by reason of accident or ordinary wear and tear; (d) any transportation or sustenance occasioned by the medical aid. (2) Medical aid shall be furnished or arranged for by the board as it may approve. [17] The Board found that it had authority to determine “if it will reimburse any worker for medications whose medical efficacy has not been established” pursuant to its exclusive jurisdiction granted by s. 22(1) to determine all matters in questions arising under the Act. [18] The applicant argues that the Act does not grant such broad authority. Instead, s. 22(1) must be read in context with s. 106(1). According to the applicant, neither ss. 106(1) or (2) permits the Board to decide that particular medical aid will not be reimbursed. The use of the word “shall” in s. 106(1) requires the Board to provide medical aid to injured employees. [19] The applicant further argues that decision to ban the reimbursement of specific type of drug effectively forces patients to take different course of treatment from that recommended by their doctor. [20] The respondent’s position is that the Board’s conclusion that the Act provides discretion to determine whether or not to reimburse the cost of the drug is “well within the bounds of reasonableness.” (Brief, para. 36) The respondent states that s. 21.1(1)(b) and ss. 106(1) and (2) must be read together with s. 22(1) which expressly grants the Board exclusive jurisdiction to hear and determine “all matters and questions arising under this Act ...”. [21] According to the respondent, the question of whether medical aid is “required in the circumstances” under s. 21.1(1)(b) or is “necessary as result of the injury” under s. 106(1)(a), are matters arising under the Act. The Board is expressly given jurisdiction to decide such matters by s. 22(1). Therefore, according to the respondent, the Board has jurisdiction to deny reimbursement for medical aid that it determines is not required or necessary in particular case. [22] The respondent states that the Board was required to interpret its own statute with which it is well familiar. The approach to interpreting legislation is articulated by Elmer Driedger in Construction of Statutes, 2nd ed. (Toronto:Butterworths, 1983) as quoted in Rizzo Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] S.C.R. 27, [1998] S.C.J. No. (QL) and as referred to in Mellor, supra: ... Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [23] Based on the wording of the Act and the context of the relevant provisions, I am of the view that the Board’s interpretation that the Act granted the Board discretion to refuse to reimburse a specific medical treatment is reasonable. [24] Section 22(1) grants the Board “...exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which power, authority or discretion is conferred upon the board ...”. [25] The question of what medical aid is necessary for particular patient is, by definition, question arising under the Act. There is nothing in the language of s. 106(1) indicating that determining what “may be necessary” for particular patient is outside the ambit of the Board’s exclusive jurisdiction. The most that might be said is that s. 106(1) mandates the Board to provide particular medical aid once the Board has determined that aid is necessary for the patient. The plain language of s. 106(1), read in conjunction with the rest of the Act, does not lead to the conclusion that the Board has no say over whether particular medical aid is necessary and should be reimbursed. [26] The same analysis applies to s. 21.1(1)(b). There is nothing in the language of that section that suggests the Board does not have the power to determine whether particular type of treatment “may be required in the circumstances” and to refuse treatments that are found not to be required. [27] am of the view that the conclusion that the Board has discretion to refuse to reimburse particular treatment falls within the range of “possible acceptable” interpretations of the Act. Following the language of Ryan, supra, there is line of analysis that could “reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.” Therefore, in my view, the Board’s decision that it has the power to deny reimbursement meets the standard of reasonableness. [28] The applicant’s position is that once doctor recommends course treatment or medication, the Board has no authority to determine whether such treatment is “necessary as result of the injury” under s. 106(1). do not find this to be reasonable interpretation, however, even if this is reasonable interpretation of the Act, it is not the only reasonable interpretation. The Board provided an interpretation that was also reasonable and deference must be given to it. 4. Did the Board’s decision to deny reimbursement to Mr. Heilman meet the appropriate standard of review? [29] The applicant takes the position that the Board has denied reimbursement for medication that had worked for Mr. Heilman for 10 years and that had been recommended by an expert doctor. The only reason the Board could provide was perceived lack of scientific approval for medical marihuana. [30] The respondent replies that the Board denied reimbursement only after thorough consideration of medical studies dealing with the use of medical marihuana for pain relief. The Board acknowledged the applicant’s evidence that marihuana was providing more effective relief than other drugs. However, the Board noted that the studies presented did not support the applicant’s claim that the use of marihuana in “...smoked, vaporized form or in baked goods, is currently safe or effective, or will be so in the long term. All of the studies indicated further research was required.” [31] The Board concluded that because medical marihuana had not been “scientifically proven” as appropriate for Mr. Heilman’s condition with respect to “...effectiveness, long term effects, interaction with other medications or safety of medication...”, it would not approve reimbursement. The Board also found that viable marihuana substitutes, such as Sativex, were available but the applicant had not tried to use them, despite the fact that reimbursement is available for the cost of Sativex. [32] According to the respondent, the Board’s decision is “...clearly within the range of reasonable outcomes. To argue otherwise would be to suggest that the medical studies support only one reasonable conclusion that medical marihuana is proven, effective treatment for Mr. Heilman’s condition...”. Furthermore, it would require finding that Sativex was not reasonable alternative to marihuana. [33] In its decision, the Board canvassed the studies submitted by the applicant. After providing brief summary of each study, the Board concluded that while the studies suggested that there may be “promise at some point in the future related to the use of medical marihuana”, nevertheless further research was required to assess the relative risks and benefits, recommended dosages, safety, quality and efficacy of marihuana as medicine. [34] The Board’s conclusion falls within range of acceptable outcomes and is supported by the evidence. The Board did not misinterpret or misconstrue the results of the studies. The studies did not definitively state that medical marihuana was effective. Many studies noted side effects and most recommended further research before drawing definitive conclusions on the use of marihuana as medicine. [35] The Board’s conclusion led to its ruling that the cost of medical marihuana should not be reimbursed as the Board can deny reimbursement for treatment that has not been proven safe or effective. The Board’s explicit assumption is that an unproven drug is not, using the language of ss. 106(1) and 21.1(1)(b) “necessary” or “required” for the patient. The Board said at p. “[w]here there is scant evidence regarding the effectiveness, long term effects, interaction with other medications or safety of medication, including medical marijuana [sic], the Board finds that it is not necessary to the worker that he be provided with this type of medical aid for the treatment of his injury.” [36] It is possible that a situation may arise where a patient’s only recourse is to use a non-clinically approved drug whose safety and efficacy is still somewhat questioned. In such a case, a determination that the medical aid is not “necessary” or “required” might be unreasonable but this is not the case here. [37] As the Board noted, Mr. Heilman had the opportunity to try Sativex, marihuana derivative that does not share the potential adverse side effects associated with marihuana. Mr. Heilman declined to try Sativex. The Board’s decision to decline reimbursement on the basis that medical marihuana is not proven and therefore not “necessary or required” is reasonable when one considers the availability of Sativex. [38] Ultimately, the Board’s decision is reasonable. The Board essentially held that the benefits and safety of medical marihuana have not been established to the point that it is “necessary” or “required” medical aid. This conclusion is supported by research and is all the more reasonable when one considers alternative medication. This may not be the best decision for Mr. Heilman, particularly in view of the fact that medical marihuana has worked for Mr. Heilman for 10 years, however, the Board’s decision was within range of reasonable outcome supported by the evidence. 5. Was the Board’s decision made for an improper purpose? Did the Board base its decision on irrelevant considerations? [39] The applicant argues that the Board’s decision was made for an improper purpose. According to the applicant, the Board denied reimbursement because medical marihuana is socially contentious. [40] The Board refused reimbursement on the basis that medical marihuana is potentially unsafe and its positive effects are clinically unproven. If the Board has authority to refuse reimbursement for such reasons, there is no improper purpose. There is no evidence before me that the Board based its decision on the basis that medical marihuana is controversial moral issue. [41] The applicant also asserts that the Board based its decision on irrelevant considerations, in effect, misconceived perception of the potential political ramification of paying for medical marihuana. [42] Again, there is no evidence that the Board made its decision on the basis of considerations such as the potential political consequences of paying for medical marihuana. On the face of its reasons, the Board denied reimbursement specifically because medical marihuana is potentially unsafe and unproven. [43] In the end result, the application is dismissed. J.A. P. A. WHITMORE
HELD: The application was dismissed. With respect to the issues, the Court found: 1) that the board had not relied upon the clause in the Policy Statement but on the evidence before it. It was not necessary to decide then whether the Policy Statement was ultra vires; 2) that the board’s interpretation that the Act granted discretion to the board to refuse to reimburse a specific medical treatment was reasonable; 3) that the board’s conclusion was reasonable. The scientific studies did not definitively stated that medical marijuana was effective. In some situations where a patient’s only recourse would to be to use a non-clinically approved drug whose safety and efficacy was still questioned, a determination that the medical aid was not necessary or required might be unreasonable, but not in this case where the applicant declined to try Sativex; and 4) that there was no evidence that the board based its decision on irrelevant considerations such as the potential political ramifications of paying for medical marijuana.