Highlights of Noteworthy Decisions

Decision 480 20
N. Perryman
  • Health care (medical aid) (marijuana)

The worker suffered a right shoulder injury in January 2005, for which the Board granted the worker an 8% NEL award. In Decision No. 2151/14, the Tribunal confirmed LOE benefits based on deemed earnings in the identified SO and denied entitlement for the left shoulder.

The worker now appealed a decision of the Appeals Resolution Officer denying entitlement for medical marijuana.
The Vice-Chair noted that the new Board policy on cannabis for medical purposes was not applicable to this appeal. Accordingly, the Vice-Chair analyzed the worker's entitlement to medical marijuana under the WSIA in accordance with the factors as set out in Tribunal jurisprudence.
Decision No. 244/15 summarized Tribunal jurisprudence in identifying the circumstances where funding for medical marijuana is generally provided, the first of which was that the worker experiences constant and debilitating pain related to the work injury.
The Vice-Chair reviewed Tribunal decisions in order to determine what constitutes constant and debilitating pain. Based on that review, the Vice-Chair found that, in addition to the worker's subjective complaints of pain, there should be objective clinical evidence to support the worker's subjective complaints. This is consistent with the Board's policy on entitlement to permanent impairment, which requires objective clinical evidence of a physical or functional abnormality or loss. Accordingly, the Vice-Chair considered the quantum of the worker's NEL award, the worker's ability to work and perform his activities of daily living, and the effect of non-compensable conditions, in addition to the totality of the medical evidence in determining whether the worker's pain was constant and debilitating.
First, the worker had an 8% NEL award for the right shoulder. He experienced a constant pain with regards to the right shoulder with an average intensity of 4 on a scale from 0 to 10. Secondly, the worker's pain medication was not only prescribed to address the worker's compensable right shoulder condition, but also non-compensable conditions. Thirdly, the worker's compensable condition has not prevented the worker from performing his activities of daily living or prevented the worker from working in a full-time capacity.
The Vice-Chair concluded that the worker's compensable right shoulder impairment was not associated with constant and debilitating pain. A permanent impairment often includes constant pain. However, in order to constitute debilitating pain, there must be a significant measurable impact on a worker's activities of daily living and/or ability to function, and that impact on the worker's functioning must be significant or serious. The objective medical evidence did not support the conclusion that the worker's right shoulder pain was debilitating within the context of Tribunal case law.
The Vice-Chair also noted that the worker suffered from a number of non-compensable conditions that have had an impact on his functioning and that the narcotic medication currently prescribed is effective in addressing his pain.
The appeal was dismissed.