At 10 a.m. I headed over to the courthouse to sit in on a Queen’s Bench proceeding before Justice Whitmore where Carey Heilman, through his pro bono lawyer Nicole Sarauer, was appealing a Workers Compensation Board ruling denying him coverage for medical marijuana which he has been using under the direction of his physician Dr. Kumar for over 11 years to control severe back pain associated with workplace injuries suffered in 1981 and 1997 that has proven resistant to treatment by conventional pharmaceuticals.
Heilman wasn’t able to attend the proceeding as he was undergoing yet another back surgery to try to improve his quality of life. But some supporters (pictured above) did show up to support his application and promote awareness of the ongoing challenges that people who are trying to access medical marijuana as part of pain management and other medical therapies are having.
This is a case I’ve written on several times before. Unlike most WCB disputes there’s no question that Heilman suffered a workplace injury that entitles him to support under the Act. What is at issue is what role the WCB should play in determining the best course of treatment for Heilman as a client. Twice now the WCB has denied to compensate him for the cost of the medical marijuana that he uses for pain management. It did so on the grounds that the medical benefits of marijuana have not yet been proven through rigorous scientific study, as typically happens with pharmaceuticals before they receive government approval, and that there may be harmful side effects stemming from the challenge of controlling exact dosage depending on the strain and amount of marijuana smoked. Therefore, as part of its duty of care toward Heilman it couldn’t reimburse him.
In asking the court to quash the decision and either substitute its own ruling that the WCB fund the treatment or at the very least review its decision yet again Sarauer argued that the WCB was overstepping its jurisdiction by effectively deciding on Heilman’s behalf what was an appropriate medical treatment for him. Yes, there may be potential side effects from marijuana use, especially in the long-term. But numerous other pharmaceuticals, like opiates, have side effects as well — like addiction — and they are regularly funded by the WCB.
With an 11-year track record of using marijuana to control his pain under the supervision of a world renowned neurosurgeon Sarauer argued the WCB was infringing on her client’s right to access a medical treatment that had proven safe and effective for him. She also noted that as a permanently disabled worker Heilman was necessarily reliant on WCB resources to fund his treatment. Yes, through the generosity of his supplier, Heilman had thus far been able to obtain cannabis under license from Health Canada, but the financial hardship this imposed on him was interfering with his well-being and therefore by denying coverage the WCB was making a de facto medical decision for him that exceeded its authority under s. 22(1) and s. 106 of the Act.
After considering the arguments of Sarauer and WCB counsel Justice Whitmore said he would release his decision at a later date.
