Heilman v. Workers' Compensation Board (Sask.), 2012 SKQB 361

• Judge: McMurtry, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 04, 2012
• Jurisdiction: Saskatchewan
• Citations: 2012 SKQB 361;(2012), 404 Sask.R. 134 (QB)

Heilman v. WCB (2012), 404 Sask.R. 134 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. SE.063

Carey Heilman (applicant) v. The Workers' Compensation Board (respondent)

(2012 Q.B. No. 620; 2012 SKQB 361)

Indexed As: Heilman v. Workers' Compensation Board (Sask.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

McMurtry, J.

September 4, 2012.

Summary:

Heilman was deemed unemployable by the Workers' Compensation Board due to two back injuries. His specialist recommended the use of medical marijuana for his pain and back spasms and he had an authorization from Health Canada to possess medical marijuana. Heilman sought compensation from the Board for the cost of medical marijuana. His claim was refused by the Appeals Department and by the Appeal Tribunal. He sought judicial review of the latter decision.

The Saskatchewan Court of Queen's Bench allowed the application. The appeal was remitted to another Tribunal appointed under the Workers' Compensation Act to make a decision according to law.

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - [See Workers' Compensation - Topic 5512 ].

Workers' Compensation - Topic 1071

Boards - Jurisdiction - Policies - [See Workers' Compensation - Topic 5512 ].

Workers' Compensation - Topic 5512

Compensation - General - Medical aid or treatment or other health related expenses - Heilman was deemed unemployable by the Workers' Compensation Board due to two back injuries - His specialist recommended the use of medical marijuana for his pain and back spasms and he had an authorization from Health Canada to possess medical marijuana - Heilman sought compensation from the Board for the cost of medical marijuana - His claim was refused by the Appeals Department and by the Appeal Tribunal - He sought judicial review of the latter decision - The Saskatchewan Court of Queen's Bench allowed the application - The Tribunal had referred to Board Policy 10/2011, which stated "[t]he WCB will not reimburse the costs of obtaining, growing, or using medical marijuana (i.e. the smoked form)" - The Tribunal also referred to the opinion of the Board Medical Department and the Board Medical Consultant - It appeared from the Tribunal's decision that it did not make an independent determination about whether Board Policy 10/2011 applied to Heilman - Instead the Tribunal held that because the medical department and/or medical consultant did not support medical marijuana, neither did it - The Tribunal's reliance on the "submissions" of the medical consultant and/or medical department for determination of Heilman's appeal was an error of jurisdiction - In effect, the Tribunal fettered its discretion by delegating the decision making to the medical consultant and/or medical department - See paragraphs 34 to 40.

Workers' Compensation - Topic 7124

Practice - Judicial review - Standard of review - Heilman sought judicial review of a decision of the Workers' Compensation Board Appeal Tribunal which upheld a decision denying him compensation for medical marijuana - The Saskatchewan Court of Queen's Bench stated that "the question before the Tribunal, whether the [Workers' Compensation] Act permits compensation for medical marijuana, 'relates intimately to the purposes and structure of the workers' compensation system'. The Tribunal was required to interpret its governing Act and Board policies and apply the evidence before it to the Act and policies to determine the claim. Accordingly, I find the standard of review is reasonableness" - See paragraph 16.

Cases Noticed:

Mellor v. Workers' Compensation Board (Sask.) (2012), 385 Sask.R. 210; 536 W.A.C. 210; 2012 SKCA 10, refd to. [para. 15].

Campbell v. Workers' Compensation Board (Sask.) (2012), 393 Sask.R. 246; 546 W.A.C. 246; 2012 SKCA 56, refd to. [para. 18].

Oakwood Development Ltd. v. St. François Xavier (Rural Municipality), [1985] 2 S.C.R. 164; 61 N.R. 321; 36 Man.R.(2d) 215; [1985] 6 W.W.R. 147, refd to. [para. 19].

Sebastian v. Workers' Compensation Board (Sask.) (1994), 125 Sask.R. 28; 81 W.A.C. 28; 119 D.L.R.(4th) 528 (C.A.), refd to. [para. 19].

Roncarelli v. Duplessis, [1959] S.C.R. 121; 16 D.L.R.(2d) 689, refd to. [para. 20].

Baldwin & Francis Ltd. v. Patents Appeal Tribunal, [1959] A.C. 663, refd to. [para. 20].

R. v. Paddington Valuation Officer; Ex parte Peachey Property Corp., [1966] 1 Q.B. 380 (C.A.), refd to. [para. 20].

Service Employees' International Union, Local 333 v. Nipawin District Staff Nurses' Association et al., [1975] 1 S.C.R. 382; 41 D.L.R.(3d) 6, refd to. [para. 21].

Skyline Roofing Ltd. v. Workers' Compensation Board (Alta.) et al., [2001] 10 W.W.R. 651; 292 A.R. 86; 2001 ABQB 624, refd to. [para. 25].

Hansen v. Workers' Compensation Board (B.C.), [2001] B.C.T.C. 1831; 2001 BCSC 1831, refd to. [para. 30].

Bax v. Workers' Compensation Board (Sask.), [1998] 7 W.W.R. 269; 163 Sask.R. 254; 165 W.A.C. 254 (C.A.), refd to. [para. 31].

Statutes Noticed:

Workers' Compensation Act, S.S. 1979, c. W-17.1, sect. 2(o), sect. 2(s.02), sect. 21.1, sect. 22, sect. 106(1), sect. 117, sect. 181 [para. 14].

Authors and Works Noticed:

Jones, David, and de Villars, Anne, Principles of Administrative Law (5th Ed. 2009), pp. 192, 193 [para. 22].

Counsel:

Nicole L. Sarauer, for the applicant;

Wayne Dale, for the respondent.

This application was heard before McMurtry, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on September 4, 2012.