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WORKPLACE SAFETY AND INSURANCE
APPEALS TRIBUNAL
DECISION NO. 2335/06R
BEFORE: R. Nairn: Vice-Chair
HEARING: March 19, 2008 at Toronto
Written
DATE OF DECISION: July 8, 2008
NEUTRAL CITATION: 2008 ONWSIAT 1890
DECISION(S) UNDER APPEAL: Workerrequest for reconsideration/clarification of
DecisionNo.2335/06I dated June 13, 2007 and Decision No.
2335/06 dated January 3, 2008.
APPEARANCES:
For the worker: Ms. M. Endicott, Consultant
For the employer: Did not participate
Interpreter: None

In an effort to cope with the pain which he had experienced as a result of his compensable injuries, the worker turned to marijuana. The worker asked the Board to compensate him for the costs associated with his use of marijuana and this issue was eventually placed before an ARO. In a decision dated October 3, 2002, the ARO denied the worker’s appeal and concluded: [The worker’s] physician prescribed marijuana for medicinal purposes. However, such use of this substance is federally regulated under the Controlled Drugs and Substance Act. An individual seeking such use must obtain an exemption from Health Canada under section 56 of that statute. But acquiring such an exemption only permits that individual to possess marijuana. It does not permit others (aside from Health Canada) to provide marijuana to the exemption holder. That would be considered trafficking. Therefore, the Board cannot be complicit in this matter, as it would violate the law. Even if [the worker] has a section 56 exemption and could then convince his illicit supplier to furnish him with receipt for reimbursement (sic). Conclusion I reviewed the objection at hand and, as indicated above, found the Board has no legal jurisdiction to permit reimbursement of [the worker’s] expenses with regards to obtaining marijuana for medicinal purposes.

On June 13, 2007, the Panel issued Decision No. 2335/06I in which we granted the worker’s appeal concerning reimbursement for marijuana related expenses and concluded: After considering all of the material before us, we are satisfied that given the particular facts of this case, the provision of marijuana is an appropriate health care measure in dealing with the pain which has resulted from this worker’s compensable injuries. As such, he is entitled to some reimbursement of the associated costs. That being said, while we have decided that the worker’s marijuana use ought to be recognized as part of his compensable treatment, this does not mean that the worker has carte blanche as far as the use of this treatment is concerned. As is the case with any other prescription medication, the Board retains the right to monitor its use and effectiveness. It would, in our view, be appropriate at some point in the future, for the Board to determine, after reviewing the medical information, that marijuana is no longer having any significant effect on the worker’s pain experience and therefore rule that entitlement is no longer in order. The Board would also, presumably, want to review the situation if the worker’s authorization by Health Canada was questioned or revoked. The worker would, of course, retain the usual rights of appeal with respect to any such decision made by the Board. Having relied to a great extent on Health Canada’s provision of access to marijuana, the Panel is of the view that it would also be appropriate to link the issue of the worker’s reimbursement to the granting of that access. While Ms. Endicott suggested that we might consider beginning the worker’s reimbursement from the date when he was first introduced to this treatment through the Toronto Compassion Centre, we find that to be impractical and share the concern of the ARO about attempting to reimburse someone for monies paid to buy marijuana on the street. In our view, the most practical and reasonable approach would be to reimburse the worker for the costs which he must pay each month to Health Canada – approximately $805. Similarly, we are satisfied that it would be appropriate to make the worker’s entitlement retroactive to the date his Health Canada access was granted which, according to the information before us, appears to be August 31, 2006. While Ms. Endicott raised issues such as providing the worker with a “commutation” of monies owing which would enable him to rent or purchase larger premises in which to grow his plants, we believe that these are issues which are more properly raised with the Board, now that initial entitlement has been granted.

DISPOSITION
The worker’s appeal is allowed. The worker’s medicinal use of marijuana is recognized as an appropriate health care measure necessitated by injuries sustained in the compensable accident of December18, 1990. The Board will reimburse the worker for the costs associated with purchasing his marijuana from Health Canada. This entitlement is granted retroactive to August31, 2006.

The hearing will reconvene to consider submissions on the remaining issues on appeal.

DISPOSITION
[34] The worker’s request to reconsider Decision Nos. 2335/06 and 2335/06I is granted. [35] Decision No. 2335/06Iis amended to indicate that beginning August 31, 2006, the Board will reimburse the worker for the costs associated with purchasing his medical marijuana. The amount of that reimbursement will be the amount he would have to pay to Health Canada if Health Canada had continued to supply the worker with his medical marijuana.