IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Johnson v. Cassiar Packing Company Ltd.,

 

2014 BCSC 152

Date: 20140130

Docket: S136506

Registry: Vancouver

Between:

Dale Johnson

Petitioner

And

Cassiar Packing Company Ltd. and
Workers’ Compensation Appeal Tribunal

Respondents

Before: The Honourable Madam Justice Bruce

Reasons for Judgment

The Petitioner:

Appearing In Person

Counsel for the Workers’ Compensation Appeal Tribunal:

Walter A. Pylypchuk
Karla Koles

Place and Date of Hearing:

Vancouver, B.C.
January 14, 2014

Place and Date of Judgment:

Vancouver, B.C.
January 30, 2014


 

INTRODUCTION

[1]             Mr. Johnson seeks judicial review of a decision of the Workers’ Compensation Appeal Board (“WCAT”) dated July 31, 2013, wherein a WCAT panel denied his appeal of a Workers’ Compensation Board (“WCB”) decision that refused his request for reimbursement for the cost of marihuana purchases. At the commencement of the hearing, WCAT applied to be formally added as a party to the judicial review application and I granted this application with the consent of Mr. Johnson.

[2]             The grounds of appeal are not readily apparent from the petition; however, in oral argument, Mr. Johnson identified the following errors in the WCAT decision. First, Mr. Johnson argues WCAT erred by failing to take into account the fact that a WCB officer, Mr. Walker, had promised that he would be reimbursed for the cost of the marihuana if he brought in receipts. Second, Mr. Johnson argues the WCB failed to recognize the multiple injuries that arose from his compensable claim for benefits. Third, Mr. Johnson argues WCAT failed to consider Mr. Johnson’s evidence that a physician authorized his use of marihuana for pain. Fourth, Mr. Johnson argues WCAT relied upon the opinion of a physician who had not examined him. Lastly, Mr. Johnson maintains that the WCB and WCAT discriminated against him.

MATERIAL FACTS

[3]             Mr. Johnson injured his hand at work in July 1978. Two fingers were amputated. The WCB accepted his claim for benefits and awarded him a partial disability pension. Over 20 years later, in 2004, the WCB accepted that as a consequence of this injury Mr. Johnson suffered from chronic pain disorder, adjustment disorder and complex regional pain syndrome. In 2008, on appeal from a WCB decision, WCAT concluded that Mr. Johnson’s injuries rendered him unemployable and awarded him a 100% loss of earnings pension.

[4]             In January 2013, Mr. Johnson sought reimbursement from the WCB for hash plants, bubba, OG, and a doctor’s visit. I assume this is marihuana as Mr. Johnson did not assert a claim for any other type of drug. Mr. Johnson did not have a prescription for marihuana from a licenced physician or a naturopathic doctor. A case manager, Mr. Vaz, requested a medical opinion from Dr. Sharma, who is a physician retained by the WCB, as to whether the WCB could approve a claim “for hash plants and marijuana related products as being medically reasonable and related to this workers pensionable conditions accepted.” (Mr. Vas’ Memorandum dated January 15, 2013)

[5]             On January 28, 2013, Dr. Sharma reviewed Mr. Johnson’s file and could not locate any prescription for marihuana. The products purchased by Mr. Johnson did not appear to be licenced pharmaceutical products and Dr. Sharma had no specific knowledge of what these products might be. Apart from Dr. Sharma’s inability to identify the products contained in Mr. Johnson’s request for reimbursement, he concluded that the WCB has a policy at present of rejecting all requests for coverage of marihuana products. As a consequence, Dr. Sharma recommended that reimbursement be denied:

It appears that this man has been using non-pharmaceutical grade marijuana. Worksafebc does not support coverage for these products. As per the EBPG memo dated June 2003, “There is insufficient evidence to support the concept that marijuana is a prescribable drug.” It is their recommendation that “The WCB should not “approve” any such requests.”

[6]             On January 30, 2013, the WCB wrote to Mr. Johnson to advise him that it would not be paying his claim for marihuana or his visit to a naturopath. The refusal was based entirely on Dr. Sharma’s medical opinion that marihuana was not a recognized prescription drug. The WCB also indicated that all future claims of this nature were denied.

[7]             Mr. Johnson requested that the WCB review the decision to deny him coverage for marihuana costs and on April 10, 2013, a review officer issued a decision denying his claim. The review officer adopted the reasons referred to in the decision of January 30, 2013, and added the following:

I acknowledge that the worker believes that the use of marijuana products may offer some benefit in treating his compensable injuries. However, the EBPG has researched this form of treatment and determined that it is not indicated for chronic pain, although it may be useful in treatment of other diseases (typically cancer). I accept the conclusion of the EBPG. There is no contrary reasoned medical opinion. Therefore, I find that the decision to deny reimbursement of marijuana products was made in accordance with the evidence, law and policy. Similarly, I find that there is a lack of evidence on the claim file to support the medical necessity of naturopathic treatment to treat the worker’s injuries at this time.

[8]             The review officer ruled in favour of Mr. Johnson regarding the prospective denial of claims for reimbursement for marihuana on the basis that the WCB is not permitted to deny claims prospectively (Review Decision at p. 2).

[9]             Mr. Johnson appealed the review officer’s decision to WCAT. On July 31, 2013, WCAT denied Mr. Johnson’s appeal. The relevant facts relied upon by WCAT are described at para. 11 of the decision:

In early January 2013, the worker requested reimbursement for his purchases of marijuana. The purchases were evidenced by receipts from a “compassion club” medical marijuana dispensary. The worker did not provide details of the purpose for the marijuana, but it appears to have been intended for pain control. Information on the worker’s claim file indicates that he has used a variety of prescription medications including opioid narcotics, for pain control over extended periods of time.

[10]         The WCAT panel cited s. 21(1) of the Workers’ Compensation Act, R.S.B.C. 1996, c. 492, as the source of its authority to compensate injured workers for medicine related to their injuries and to WCB Policy #72.00, which states that the WCB is responsible for the cost of health care benefits for compensable injuries, including prescription drugs. Policy #78.10 was also considered relevant because this policy grants the WCB authority to approve or disapprove payment for medical benefits such as prescription medications.

[11]         The WCAT panel noted that while there is no specific policy regarding medical marihuana, the WCB’s practice is based upon a recommendation of the EBPG (Evidence Based Practice Group). The WCAT panel went on to describe the research carried out by the EBPG regarding medical marihuana at para. 18:

The EBPG first commented on medical marijuana in 2003. The EBPG concluded at that time that there was insufficient evidence to support the concept that marijuana was a prescribable drug, and recommended that the Board should not approve any requests for its use. The EBPG also concluded that requests for pharmaceutical grade cannabinoid derivatives (synthetic cannabinoids) in cancer or HIV related claims might be considered and should require input from a senior medical advisor. Between 2003 and 2006 Health Canada granted approval to three synthetic cannabinoids for relief of neuropathic pain in adults with multiple sclerosis and for treating severe nausea associated with cancer chemotherapy. In 2006, the EBPG published an update on their earlier review. Their conclusion was that, given the evidence available at that time on the effectiveness of cannabis or cannabinoids on treating chronic non-malignant pain, the Board’s practice with respect to the medicinal use of cannabis or cannabinoids in treating chronic pain, as outlined in June 2003, should not be changed.

[12]         Thereafter, the WCAT panel noted that Dr. Sharma’s opinion, which was followed by the WCB, was consistent with the recommendation of the EBPG and, further, Mr. Johnson had not submitted any contrary medical opinion evidence to the WCB or to WCAT. The WCAT panel went on to note that as a “matter of general knowledge” medical marihuana is a controversial subject, “even among medical practitioners.”

[13]         In conclusion, the WCAT panel found the WCB’s decision to deny Mr. Johnson’s claim was “a reasonable exercise of the Board’s discretion under s. 21(1) of the Act”.

[14]         Lastly, the WCAT panel addressed Mr. Johnson’s claim that a WCB case manager agreed to cover the costs of the marihuana at para. 22:

The worker provided a brief written submission in which he stated that a Board case manager had told him the Board would cover the cost of medical cannabis if he brought in receipts, but the case manager later changed his mind. There is no record of such a conversation or any other evidence corroborating the worker’s statement, but even if I accept that such a conversation took place, it would not alter my conclusion that the Board properly exercised its control over healthcare benefits in denying payment for marijuana.

DECISION

[15]         The applicable standard of review in this case is patently unreasonable. Whether or not medical benefits are compensated under s. 21(1) of the Workers’ Compensation Act is a matter of discretion for the WCB. Further, it is a matter over which the WCB has exclusive jurisdiction primarily due to the privative clauses found in ss. 254 and 255 of the Workers’ Compensation Act. See, Hansen v. British Columbia (Workers’ Compensation Board), 2001 BCSC 1831 at para. 23. Thus s. 58(2)(a) of the Administrative Tribunals Act, S.B.C. 2004, c. 45, governs and this provision stipulates that the patently unreasonable standard is applicable.

[16]         Section 58(3) of the Administrative Tribunals Act provides that a discretionary decision is patently unreasonable if it:

(a)        is exercised arbitrarily or in bad faith,

(b)        is exercised for an improper purpose,

(c)        is based entirely or predominantly on irrelevant factors, or

(d)        fails to take statutory requirements into account.

[17]         Where the judicial review concerns findings of fact or law by the WCAT panel, s. 58(3) does not apply. Instead, the court must apply the common law definition of patently unreasonable: United Steelworkers, Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers International Union, Local 2009 v. Auyeung, 2011 BCCA 527 at paras. 68-73. The question is whether the WCAT decision is defensible in respect of its findings of fact and law or is within the range of defensible outcomes, with considerable deference accorded to this specialized tribunal.

[18]         Turning to Mr. Johnson’s specific complaints regarding the WCAT decision, I am unable to conclude that there was any discrimination apparent in their denial of his appeal. WCAT has consistently denied all claims for reimbursement of medical marihuana on the ground that it is not yet sufficiently recognized as a prescribable drug for pain reduction or management. Although Mr. Johnson may regard the conduct of individual WCB staff members as overtly or covertly discriminatory, there is no evidence to suggest that this attitude had any impact on the outcome of the WCAT decision.

[19]         Mr. Johnson also argues the WCAT panel failed to consider his evidence that a physician prescribed marihuana for his pain; however, in oral argument Mr. Johnson acknowledged that he has not succeeded in persuading a physician in B.C. to prescribe marihuana for him. The marihuana that Mr. Johnson receives from the compassion club is not dispensed by a physician. Nor can it be regarded as pharmaceutical grade marihuana.

[20]         Mr. Johnson takes issue with WCAT’s reliance on an opinion provided by a doctor that has not treated him. Dr. Sharma’s opinion formed the basis of the WCB’s decision to deny Mr. Johnson’s claim and that opinion was again validated by the WCAT panel. While it may have been unreasonable for the WCB and WCAT to deny benefits to a worker based on a medical opinion from a physician who had not examined the worker, in this case Dr. Sharma’s opinion in no way depended upon the nature of Mr. Johnson’s injuries or the severity of the pain he suffers from. The medical opinion was solely based on the research available to the WCB that up to this point in time there is insufficient support in the medical community for the use of marihuana in pain reduction.

[21]         Mr. Johnson maintains that his case worker promised he would be compensated for marihuana purchases provided he brought in receipts. The WCAT panel concluded there was insufficient evidence to support this assertion and I find nothing unreasonable about this factual conclusion. The WCAT panel noted there was nothing on the worker’s file concerning this promise and it was Mr. Johnson’s case manager who denied the claim shortly after he filed it. I also find nothing unreasonable in the WCAT panel’s conclusion that this fact, even if proven, would not affect the reasonableness of the WCB’s decision to deny his claim. The WCB followed its consistent practice regarding compensation for marihuana purchases, which in turn, was supported by the only medical evidence before the WCB and the WCAT panel.

[22]         Although Mr. Johnson has raised a general complaint that the WCB has failed to recognize as compensable many of his injuries, this argument is not relevant to the decision under review. Regardless of the injuries suffered and the severity of the pain associated with those injuries, the WCAT panel refused Mr. Johnson’s claim for reimbursement because marihuana, his drug of choice, was not recognized as a valid treatment for pain reduction or management.

[23]         In my view, the WCAT panel properly decided this appeal on the only medical evidence that was before them. Mr. Johnson did not produce any medical evidence to support a conclusion contrary to that reached by the EBPG in 2003 and in 2006. The WCB has delegated responsibility to the EBPG to research the evidence surrounding medical issues such as the use of marihuana for pain reduction. To date, the members of the EBPG have not found sufficient evidence to support a conclusion that marihuana could properly be prescribed for pain. There is no evidence that this conclusion is unreasonable or that WCAT acted unreasonably in relying upon this conclusion.

[24]         It is apparent that the WCB policies regarding medications change over time in keeping with advances in medical science. Had Mr. Johnson produced some evidence from his physician or another physician concerning the recognition of marihuana as a treatment for pain, the WCAT decision may well have been different. However, where WCAT decides an issue in a manner consistent with the only medical opinion evidence before it, the result cannot be regarded as patently unreasonable. A denial of the claim on this ground is clearly within the range of reasonable outcomes.

[25]         For these reasons I must deny Mr. Johnson’s application for judicial review.

“Bruce J.”