Ontario workplace safety tribunal looks into claim around medical marijuana

Police officer suffering from PTSD years after fatal shooting 
finds relief in drug for symptoms considered ‘constant and debilitating’
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 08/29/2019
Police
An Ontario police officer suffering from PTSD was entitled to reimbursement of costs associated with using medical marijuana, according to the Ontario Workplace Safety and Insurance Appeals Tribunal. Credit: Bennian (Shutterstock)

A former Ontario police officer has won his appeal for the reimbursement of costs related to a medical marijuana prescription to treat his work-related post-traumatic stress disorder (PTSD).

The 55-year-old was involved in the fatal shooting of a suspect in 1996. The worker developed PTSD stemming from the incident and had to take time off work, for which the province’s Workplace Safety and Insurance Board (WSIB) granted him entitlement to benefits while he was off work.

Eventually, the individual returned to work as a police officer with the help of ongoing counselling. However, in 2006, his PTSD symptoms were exacerbated and worsened to the point where he had to go off work again for more than two years.

In 2009, the worker’s treating physician believed his PTSD was in remission so the worker returned to work, and continued with his counselling sessions.

But his PTSD symptoms became serious enough to cause the worker to miss work in 2013 and he began seeing a psychologist; he would continue to do so for several years.

The worker suffered a serious recurrence of his PTSD in late 2014 and his psychologist determined it was so severe the worker could not work in any capacity. The WSIB referred the worker for a psychological assessment at the Centre for Addiction and Mental Health (CAMH) in Toronto.

The assessment determined the traumatic incident the worker suffered while on duty was a significant contributor to the latest recurrence of his PTSD and he had not reached the maximum medical recovery.

In the first several years after the 1996 on-duty incident, the worker was prescribed a number of medications.

However, some were only meant for short-term use and had adverse side effects. By 2009, the worker stopped taking most of the drugs he had been prescribed and, by the time of the CAMH assessment, he was relying on counselling sessions, prescribed medical medications, and trauma therapy from his treating physician.

In 2015, the worker consulted another doctor who wasn’t his regular treating physician. This doctor provided him with a prescription for a small amount of medical marijuana — one gram per day for 90 days, which the worker was still using at the time of his CAMH assessment.

The assessing psychiatrist was aware of the worker’s medical marijuana prescription and didn’t indicate any concerns. The psychiatrist noted the worker was no longer taking any psychiatric medications, was relying on counselling, and “it is possible (the worker) may be benefitting from continued access to medical marijuana” as the worker’s symptoms seemed to be improving.

The worker claimed entitlement to cover the costs of his medical marijuana, but the WSIB denied his claim because the drug wasn’t on the list of medications paid for by the board. A WSIB appeals resolution officer agreed and upheld the denial.

The worker appealed to the Ontario Workplace Safety and Insurance Appeals Tribunal, arguing that the CAMH assessment supported his use of medical marijuana as a treatment for his PTSD, the prescription allowed him to manage the symptoms without having to use other drugs, and his PTSD symptoms were “constant and debilitating.”

He also argued that Veterans Affairs Canada covered the costs of medical marijuana for veterans.

Tribunal weighs in

The tribunal noted that the Ontario Workplace Safety and Insurance Act, 1997, states that “every worker who sustains a compensable injury is entitled to such health care as may be necessary” and the WSIB policy document on health-care entitlement defines health care as including prescription drugs.

Though the WSIB released a policy on cannabis for medical purposes on March 1, 2019, the worker’s claim predated this policy.

The tribunal also noted that previous tribunal decisions had established that while there was a lack of “high-quality studies” on the efficacy of marijuana treating pain, and it was also a common recreational drug, reimbursement of medical marijuana could be granted if:

• the worker’s pain is constant and debilitating

• other methods of pain management have proven to be ineffective and medical marijuana has helped in the elimination or reduction of the worker’s use of narcotic medication

• there is reliable evidence that the worker’s treating physicians believe medical marijuana has been effective in dealing with the impairment

• the worker has authorization to possess and use medical marijuana from Health Canada (more recent tribunal decisions have removed this requirement).

The tribunal found the worker’s case was unique in that his disability did not include physical pain.

However, that didn’t mean the pain wasn’t constant and debilitating. Medical evidence indicated it could take years to recover from PTSD, and up to 25 per cent of people fail to recover for many years, with some recurrence episodes lasting as long as seven years.

In the police officer’s case, while he was able to go back to work at times, when he experienced a PTSD episode, “his functioning essentially results in marked impairment,” said the tribunal.

And with his increase in symptoms in late 2014 and early 2015, his psychiatrist found he could not longer work in any way — a significant impairment, said the tribunal.

In addition, though the worker’s functioning fluctuated, his symptoms could be considered constant after the late 2014 recurrence after which he was unable to work, it said.

The tribunal also found that the worker made a concerted effort to wean himself off psychiatric drugs, which had side effects and didn’t always help.

The CAMH assessment didn’t find he needed to go back on any of the drugs and there weren’t any concerns about his use of medical marijuana and regular counselling as treatment — no additional plan was recommended, so it was reasonable to conclude prior methods of treatment had been less effective.

“After an extensive assessment, CAMH was satisfied that psychiatric medications were not necessary and medical marijuana was possibly beneficial,” said the tribunal.

The physician who prescribed the marijuana was not the worker’s regular treating physician and only consulted with him once, found the tribunal, but the rest of the medical evidence was sufficient to outweigh this.

Both CAMH and the worker’s psychiatrist thought the worker was improving while he used medical marijuana and there was no medical opinion suggesting the worker shouldn’t be using it.

Finally, the tribunal noted in Decision No. 685/19, 2019 ONSWIAT 972 (Ont. Workplace Safety & Ins. Appeals Trib.) that in addition to the Health Canada approval being no longer necessary, Health Canada had recently stated that cannabis has “potential therapeutic benefits for PTSD.”

The tribunal determined the police officer was entitled to reimbursement of costs associated with his use of medical marijuana to treat his PTSD for the duration of his 90-day prescription.

Additional proof of ongoing prescriptions would be needed for ongoing entitlement, said the tribunal.