Heilman v. Workers' Compensation Board (Sask.),

• Jurisdiction: Saskatchewan
• Judge: Whitmore
• Neutral Citation: 2013 SKQB 403
• Citation: (2013), 432 Sask.R. 174 (QB),2013 SKQB 403,432 SaskR 174,(2013), 432 SaskR 174 (QB),432 Sask.R. 174
• Date: 14 November 2013
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Heilman v. WCB (2013), 432 Sask.R. 174 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. NO.045

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

(2012 Q.B. No. 620; 2013 SKQB 403)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Whitmore, J.A.(ex officio)

November 14, 2013.

Summary:

Heilman suffered from chronic back pain and muscle spasms as a result of work related injuries. He was entitled to compensation under the Workers' Compensation Act. On the recommendation of his physician, he commenced using medical marijuana for pain. The Workers' Compensation Board denied Heilman reimbursement for the cost of his medical marijuana. Heilman applied for judicial review of that decision.

The Saskatchewan Court of Queen's Bench, in a decision reported at 404 Sask.R. 134, allowed the application. The court found that the Board improperly fettered its discretion by relying on the submissions of the Board's medical consultant and medical department. The court remitted the matter to the Board. The Board again decided to deny reimbursement to Heilman for the cost of medical marijuana. Heilman applied for judicial review of that decision.

The Saskatchewan Court of Queen's Bench dismissed the application.

Workers' Compensation - Topic 1071

Boards - Jurisdiction - Policies - Heilman suffered from chronic back pain and muscle spasms as a result of work related injuries - He was entitled to compensation under the Workers' Compensation Act - On the recommendation of his physician, he commenced using medical marijuana for pain - The Workers' Compensation Board denied Heilman reimbursement for the cost of his medical marijuana - Heilman applied for judicial review - One issue was whether the Board exceeded its jurisdiction in enacting Policy Statement 5 of POL 10/2011 to deny reimbursement of medical marijuana claims in all cases - The Saskatchewan Court of Queen's Bench stated that "While it is certainly arguable that the Board cannot rely on a blanket prohibition to deny the reimbursement of a particular drug, this does not appear to be the case here. The Board did not rely on Policy Statement 5 or even mention it in its decision, but based its decision on the evidence before it. Therefore, even if Policy Statement 5 is ultra vires, it does not decide this matter. It is not necessary to decide whether Policy Statement 5 is ultra vires" - See paragraphs 10 to 15.

Workers' Compensation - Topic 5512

Compensation - General - Medical aid or treatment or other health related expenses - Heilman suffered from chronic back pain and muscle spasms as a result of work related injuries - He was entitled to compensation under the Workers' Compensation Act - On the recommendation of his physician, he commenced using medical marijuana for pain - The Workers' Compensation Board denied Heilman reimbursement for the cost of his medical marijuana - Heilman applied for judicial review - One issue was whether the Board had the jurisdiction to deny reimbursement for a specific medical treatment - The Saskatchewan Court of Queen's Bench held that based on the wording of the Act and the context of the relevant provisions, the Board's interpretation that the Act granted the Board discretion to refuse to reimburse a specific medical treatment was reasonable - See paragraphs 16 to 28.

Workers' Compensation - Topic 5512

Compensation - General - Medical aid or treatment or other health related expenses - Heilman suffered from chronic back pain and muscle spasms as a result of work related injuries - He was entitled to compensation under the Workers' Compensation Act - On the recommendation of his physician, he commenced using medical marijuana for pain - The marijuana provided him more effective relief than other medications he had been prescribed without the severe side effects that accompanied other drugs - The Workers' Compensation Board denied Heilman reimbursement for the cost of his medical marijuana - Heilman applied for judicial review - The Saskatchewan Court of Queen's Bench dismissed the application - The Board's decision met the applicable standard of reasonableness - The Board canvassed the studies submitted by Heilman - The Board concluded that further research was required to assess the relative risks and benefits, recommended dosages, safety, quality and efficacy of marijuana as medicine - The Board essentially held that the benefits and safety of medical marijuana had not been established to the point that it was a "necessary" or "required" medical aid - That conclusion was supported by research and was all the more reasonable when one considered alternative medication - See paragraphs 29 to 38.

Workers' Compensation - Topic 5512

Compensation - General - Medical aid or treatment or other health related expenses - Heilman suffered from chronic back pain and muscle spasms as a result of work related injuries - He was entitled to compensation under the Workers' Compensation Act - On the recommendation of his physician, he commenced using medical marijuana for pain - The Workers' Compensation Board denied Heilman reimbursement for the cost of his medical marijuana - Heilman applied for judicial review - Heilman argued that the Board's decision was made for an improper purpose (because medical marijuana was socially contentious) - He also asserted that the Board based its decision on irrelevant considerations (the potential political ramification of paying for medical marijuana) - The Saskatchewan Court of Queen's Bench dismissed the application - The Board refused reimbursement on the basis that medical marijuana was potentially unsafe and its positive effects were clinically unproven - If the Board had authority to refuse reimbursement for such reasons, there was no improper purpose - There was no evidence that the Board based its decision on the basis that medical marijuana was a controversial moral issue - There was also no evidence that the Board made its decision on the basis of considerations such as the potential political consequences of paying for medical marijuana - See paragraphs 39 to 42.

Workers' Compensation - Topic 7124

Practice - Judicial review - Standard of review - [See second Workers' Compensation - Topic 5512 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 6].

Mellor v. Workers' Compensation Board (Sask.) (2012), 385 Sask.R. 210; 536 W.A.C. 210; 2012 SKCA 10, refd to. [para. 6].

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 7].

Pasiechnyk v. Saskatchewan (Worker's Compensation Board) - see Pasiechnyk et al. v. Procrane Inc. et al.

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 9].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 9].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 22].

Statutes Noticed:

Workers' Compensation Act, S.S. 1979, c. W-17.1, sect. 21.1(1), sect. 22, sect. 106 [para. 16].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), generally [para. 22].

Counsel:

Nicole L. Sarauer, for the applicant;

Leonard D. Andrychuk, Q.C., for the respondent.

This application was heard before Whitmore, J.A.(ex officio), of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on November 14, 2013.