Home Featured New Brunswick man wins workers’ comp appeal over funding of medical cannabis with higher levels of THC to manage pain

New Brunswick man wins workers’ comp appeal over funding of medical cannabis with higher levels of THC to manage pain

by HR Law Canada

New Brunswick’s Workers’ Compensation Appeals Tribunal has overturned two decisions made by the Workplace Health, Safety and Compensation Commission regarding the medical cannabis treatment of a worker who required high levels of THC.

The worker has been embroiled in a legal battle over the authorization and funding of his medical cannabis, specifically the tetrahydrocannabinol (THC) content in his prescription.

The dispute centered on two decisions by the Commission. First, a June 28, 2022, decision from the Commission’s Decision Review Office denied the worker’s request for medical aid as the evidence was deemed insufficient to alter the authorized level of THC in his medical cannabis.

Second, a decision on the same date denied his request for reconsideration of a previous decision, stating that new evidence provided was not substantial enough to warrant a change.

The case’s background reveals that the worker, suffering from chronic low back pain and right leg radiculopathy, had undergone various treatments including surgery and physiotherapy. Since 2014, he had been prescribed medical cannabis for pain management by his treating physician.

Despite his improved condition and ability to return to work in a different capacity, issues arose regarding the THC content in his medical cannabis.

The Commission initially authorized medical cannabis with less than nine per cent THC. However, the worker’s supplier provided cannabis with THC content varying between 16.4 per cent and 22 per cent. The Commission, adhering to its policy, later restricted the funding to cannabis with less than one percent THC.

The worker appealed the decisions, arguing the higher THC content was crucial for his pain management and functionality, and that he had not experienced any impairment at work.

“He says he achieves better results overall with medical cannabis with more than one per cent THC content. He found no relief with higher levels of CBD oil. Without higher THC content, his chronic pain flares up causing his work stoppage as corroborated by his testimony and sick leave records from September 2020 to April 2021,” the Tribunal said.

His doctor supported this position, emphasizing the worker’s significant improvement and adherence to the Medical Marijuana Treatment Agreement.

In its ruling, the Appeals Tribunal highlighted several key points. It noted that the worker’s medical aid in the form of cannabis with more than one per cent THC had been determined before the implementation of the Commission’s restrictive policy in 2020.

“I find that the Commission cannot restrict the approved quantity and type of medical aid in 2020 after it has already been determined by the appellant’s medical providers, since 2014, because it is a pre-existing entitlement,” the Tribunal said.

“The appellant has been using a higher THC medical cannabis, under medical supervision, with success and without evidence of any impairment at work. It has allowed him to continue working and has improved his activities of daily living.”

Therefore, the Tribunal found the policy inapplicable in this case. The Tribunal placed significant weight on the doctor’s opinions, who had directly treated and monitored the worker’s progress.

Consequently, the Tribunal directed the Commission to reinstate the previous prescription, dosage, and THC content of the worker’s medical cannabis as it was before the Commission’s decision in April 2020. It also ordered the Commission to continue funding the prescription and reimburse the worker for past purchases from a licensed producer or distributor.

For more information, see 20230278 (Re), 2023 CanLII 114624 (NB WCAT)

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