2020 NBCA 40, 2020 NBCA 40

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 123-18-CA MARGOT BEST APPELLANT MARGOT BEST APPELANTE - and - - et - WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION and ANGLOPHONE SOUTH SCHOOL DISTRICT RESPONDENTS COMMISSION DE LA SANTÉ, DE LA SÉCURITÉ ET DE L’INDEMNISATION DES ACCIDENTS AU TRAVAIL et DISTRICT SCOLAIRE ANGLOPHONE SOUTH INTIMÉS Best v. Workplace Health, Safety and Compensation Commission and Anglophone South School District, 2020 NBCA 40 Best c.

Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail et District scolaire Anglophone South, 2020 NBCA 40 CORAM: The Honourable Justice Drapeau The Honourable Justice Green The Honourable Justice French CORAM : l’honorable juge Drapeau l’honorable juge Green l’honorable juge French Appeal from a decision of the Workers’ Compensation Appeals Tribunal: September 4, 2018 Appel d’une décision du Tribunal d’appel des accidents au travail : le 4 septembre 2018 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: [2019] N.B.J.

No. 77 [2019] N.B.J. No. 59 Procédures préliminaires ou accessoires : [2019] A.N.-B. n o 77 [2019] A.N.-B. n o 59

Appeal heard: October 8, 2019 Appel entendu : le 8 octobre 2019 Judgment rendered: June 11, 2020 Jugement rendu : le 11 juin 2020 Reasons for judgment by: The Honourable Justice French Motifs de jugement : l’honorable juge French Concurred in by: The Honourable Justice Drapeau The Honourable Justice Green Souscrivent aux motifs : l’honorable juge Drapeau l’honorable juge Green Counsel at hearing: For the appellant: Julian C. Renaud For the respondent Workplace Health, Safety and Compensation Commission: Matthew R.

Letson For the respondent Anglophone South School District: No one appeared Avocats à l’audience : Pour l’appelante : Julian C. Renaud Pour l’intimée la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail : Matthew R. Letson Pour l’intimé le District scolaire Anglophone South : personne n’a comparu THE COURT The appeal is allowed, and the decision of the Appeals Tribunal is set aside.

The Commission is ordered to reimburse the appellant for the cost of medical marijuana purchased from an approved supplier for use in connection with her compensable condition under the prescription of a physician or with the approval of Health Canada for the period between March 1, 2017 to December 31, 2018. The other issues arising in this appeal are returned to the Appeals Tribunal for determination . Costs are ordered payable to the appellant in the amounts of $2,500 for the appeal, and $2,000 for the motion necessitated by the missing transcript.

LA COUR L’appel est accueilli et la décision du Tribunal d’appel est annulée. Il est ordonné à la Commission de rembourser à l’appelante le coût de la marijuana à des fins médicales achetée à un fournisseur approuvé afin de soulager un problème médical indemnisable et prescrite par un médecin ou approuvée par Santé Canada, le remboursement devant couvrir la période allant du 1 er mars 2017 au 31 décembre 2018. Les autres questions soulevées en appel sont renvoyées au Tribunal d’appel afin qu’il rende une décision.

L’appelante a droit à des dépens de 2 500 $ en appel et de 2 000 $ pour la motion qui a dû être présentée relativement à la transcription qui manque . The judgment of the Court was delivered by

FRENCH, J.A. I. Introduction [ 1 ] In 2017, Margot Best asked Workplace Health, Safety and Compensation Commission to pay the cost of her medical marijuana. The Commission denied her request and she appealed to the Workers’ Compensation Appeals Tribunal. It dismissed her appeal, and she appeals that decision to this Court. [ 2 ] The Appeals Tribunal accurately identified the issue as “whether medical marijuana is [a] medical aid that is ‘necessary’ for [Ms. Best] as a result of her 2002 workplace accident”. However, its decision must be set aside. Despite having accepted Ms.

Best’s evidence that she derived a therapeutic benefit from the use of medical marijuana, the Tribunal characterized it as “anecdotal evidence” which “ is not, and cannot be, enough” to establish its necessity as a medical aid. The Commission did not dispute Ms. Best’s assertion that the Tribunal had a duty to render its decision based on the real merits and justice of her case. Nor did it dispute that it would be an error of law to disregard her evidence as anecdotal. Rather, the Commission’s position was that the Tribunal’s decision should not be read so literally and interpreted in that manner.

In my view, a contextual reading of the Tribunal’s decision indicates a use of Ms. Best’s evidence that is incompatible with having made a decision based on the real merits and justice of the case. [ 3 ] Ms. Best requested that this Court make the decision the Appeals Tribunal ought to have made, rather than refer her back to the Tribunal. This is possible, but only in part. The evidence of Ms.

Best’s inability to manage her chronic pain for nine years, until she began using medical marijuana, and the benefit she received from its physician approved use during the following six years – evidence that was accepted by the Tribunal – is sufficient to establish necessity, on a balance of probabilities. However, the matter must be referred to the Appeals Tribunal to determine over what period Ms. Best’s costs should be covered. On appeal, she requested that she be reimbursed from the time of its initial use in 2011.

The record on this issue is incomplete, and the parties did not address it in their submissions. Also, in relation to Ms. Best’s ongoing, prospective claim for reimbursement, after 2018, distinct issues may arise from the Commission’s new, and first, policy respecting medical marijuana, none of which were addressed by the parties in their submissions. In

summary, for the reasons that follow, I would set aside the decision of the Appeals Tribunal, order the Commission to reimburse Ms. Best from the time of her request to the Commission, in March 2017, until December 31, 2018 and return the other issues to the Appeals Tribunal for a determination. [ 4 ] B efore proceeding further, I would note the Commission’s approach to medical marijuana has evolved since Ms. Best first made her claim. When it denied her request in 2017, the Commission did not have a policy that expressly addressed the use of medical marijuana/cannabinoids.

Its first such policy, entitled “Medical Aid – Cannabis (Marijuana) for Medical Purposes” (the “New Cannabis Policy”), became effective in April 2018. [ 5 ] Prior to the New Cannabis Policy, the Commission’s response to requests to pay for medical marijuana was governed by a directive, entitled “

Schedule of Care – Generally Not Approved Care, Treatment and Tests ” (the “Directive”). It was explained that, while a policy is approved by the Commission’s board, a directive is not; both can provide direction or guidance to staff who authorize care or treatment of injured workers. The Directive addresses 20 types of care and treatments that, in the view of the Commission, are of unknown or of questionable effectiveness. It includes such treatments as, for example, botulinum toxin for myofascial pain, chronic pain or chronic headaches; craniosacral therapy; home hydrotherapy/whirlpool; and laser therapy.

In 2016, the Directive was amended to address “medical marijuana,” and it applied until it was overtaken by the New Cannabis Policy. I would note that t he record is silent on the principles that guided the Commission’s response to claims for the use of medical marijuana before the Directive was amended in 2016. [ 6 ] The Commission followed the Directive when it responded to Ms. Best’s claim and the Appeals Tribunal based its decision on the application of the Directive. In this Court, both parties maintained that Ms.

Best’s case and her appeal stood to be adjudicated under the Directive, not the New Cannabis Policy. [ 7 ] Under the Directive, “medical marijuana” includes both pharmaceutical marijuana and dried marijuana. It permits the Commission to pay the cost of medical marijuana (pharmaceutical marijuana or dried marijuana) for those conditions and/or uses that are “listed” in the Directive, without the necessity of undertaking a further, or case specific, evaluation.

For all other conditions, the Directive requires that requests be “decided on the ‘merits of the case.’” In such situations, an evaluation of the claim is undertaken. Since Ms. Best’s request related to chronic myofascial pain, it stood to be determined, according to the Directive, on the “merits of the case,” and the Commission instigated such an evaluation. The Directive provides:

“Merits of the case” evaluation: for consistency and incorporation/synthesis of the latest research into its decision-making process, WorkSafeNB will use Canadian Health Solutions to evaluate the “merits of the case.” [ 8 ] The approach under the New Cannabis Policy is different in a number of respects. Notably, it does not apply to pharmaceutical cannabinoids.

The policy provides that pharmaceutical cannabinoids, which have a drug identification number issued by Health Canada, are administered “based on a separate formulary similar to other medications and [they] may be used to treat compensable injury or disease such as post-traumatic stress disorder (PTSD).” Presumably, as with any pharmaceutical, “off label” use may not be supported by the Commission without further inquiry. [ 9 ] Under the New Cannabis Policy, similar to the Directive, the Commission may pay for “Medical Cannabis (marijuana),” which includes both dried and oil forms of cannabis, for those conditions and/or uses that are specifically identified in the policy.

For certain other uses, an assessment will be required before payment may be approved. [ 10 ] It is helpful to note that, while Ms. Best’s request was for dried marijuana, the Appeals Tribunal determined that, under the Directive, neither pharmaceutical marijuana nor dried marijuana were necessary. Ms. Best had been prescribed pharmaceutical marijuana (Cesamet (nabilone)) in 2011, before she turned to dried marijuana later that year. Dr. Patricia Forgeron’s report of April 14, 2011, explained that Ms.

Best reported difficult side effects (diarrhea, constipation and cramping) and stopped using it after a three-month trial. The side effects returned after a second trial. Dr. Forgeron noted that since Ms. Best experienced relaxation as well as pain relief with cannabinoids, she suggested “a trial of Sativex buccal or sublingual spray and prescribed [it] however,” these pharmaceutical cannabinoids were cost prohibitive for Ms. Best. Dr.

Forgeron’s report notes that it was on this basis she agreed to complete the Health Canada application for marijuana for a medical purpose. [ 11 ] Given the absence of scientific evidence indicating the efficacy of medical marijuana for the type of chronic pain experienced by Ms. Best, it is expected that it will be rare for the necessity of medical marijuana to be established for such pain without a history or record as full as that which exists in this case II. Background [ 12 ] Ms. Best has used dried cannabis since 2011 for chronic pain caused by a 2002 workplace injury.

As noted, her application to Health Canada for approval to buy marijuana for a medical purpose was supported by a physician after Ms. Best unsuccessfully attempted two trials of a prescribed pharmaceutical cannabinoid (Cesamet). While Cesamet provided relief for her symptoms, it also caused adverse side effects, as had the other prescribed medications Ms. Best tried over the years to manage her chronic pain. [ 13 ] In May 2002, while working as a teacher’s assistant, Ms. Best stopped a student in a motorized wheelchair from accelerating downhill during a fire drill.

The chair’s joystick was jammed in the forward position, and Ms. Best dislodged the joystick and grabbed the wheelchair to stop it from going further. She said that she heard a “pop” and later she experienced severe upper back and neck pain. Following physiotherapy and a Work Conditioning Program at the Workers’ Rehabilitation Centre during the summer of 2002, Ms. Best began a gradual return to work in September. She was 44 years of age. At the time, she reported continued pain and tightness in her shoulder/neck area and an occasional tingling in her fingers.

Subsequently, a number of medical professionals concluded she suffered from a chronic myofascial pain syndrome. A medical examination on behalf of the Commission in January 2003 reported that Ms. Best’s pain involved “the entire thoracic spine, periscapular, shoulder girdle, anterior and lateral cervical spine and with headaches” and it was consistent with a myofascial pain syndrome. Unable to perform her pre-injury duties, in 2003, the Commission assisted Ms. Best as she was accommodated by the school district in a sedentary position. Due to her continuing work restriction, in 2013, Ms.

Best was again accommodated, and she has since worked in an administrative position at the district office, where she is currently an Administrative Assistant. [ 14 ] That Ms. Best continues to live with chronic pain is not disputed. As recently as 2017, while responding to Ms. Best’s request to pay for medical marijuana, the Commission arranged for an occupational therapist to undertake an Ergonomic Evaluation of her new workstation at the district office. [ 15 ] Although Ms. Best has used medical marijuana since 2011, she did not ask the Commission to pay the cost until March 2017. Ms.

Best’s use of medical marijuana for management of her chronic pain was known to the Commission since at least as early as 2012, when she advised of its use during her participation in a 6-week Work Recovery Program at the Workers’ Rehabilitation Centre. Also, the Commission had Dr. Patricia Forgeron’s report, dated April 14, 2011, which explains Dr. Forgeron’s rationale for supporting Ms. Best’s application to Health Canada for marijuana for medical purposes. It also had Dr. Forgeron’s 2012

report of her follow-up meeting with Ms. Best. In 2017, the Commission was provided with reports (Form 10) from her family physician, Dr. Mark Foster, and Dr. Ian Grant, who reported Ms. Best was using medical marijuana to treat the chronic pain relating to her workplace injury. [ 16 ] By letter dated July 19, 2017, the Commission denied Ms. Best’s request, stating its medical advisor “has indicated that medical marijuana is not a requirement in relation to your compensable injury.” [ 17 ] Following this denial, in November 2017, Ms. Best provided the Commission with additional information from Dr. Foster.

In response to questions asked by the workers’ advocate who was assisting Ms. Best, Dr. Foster reported Ms. Best’s use of medical marijuana is beneficial for the symptoms related to her compensable back injury; he advised it helps by decreasing Ms. Best’s pain and increasing her ability to function. [ 18 ] After receiving Dr. Foster’s opinion, the Commission’s adjudicator again consulted with the internal medical advisor, who responded: “No change in my opinion. Dr. Foster’s opinion noted. Your call.” However, before making a decision, the adjudicator, “[a]s per our Directive, [sent Ms.

Best’s] claim to [Canadian Health Solutions] to review if medical marijuana should be considered claim related and funded by WorkSafeNB.” [ 19 ] As requested, Canadian Health Solutions Inc. (“CHS”) reviewed Ms. Best’s claim and, in its report dated December 29, 2017, opined that the use of medical marijuana was not warranted: Based on CHS Marijuana Review above, there is NO medical indication for the use of dried cannabis (in any form) or pharmaceutical cannabinoid for chronic soft tissue pain without any identified objective pain generator (neuropathic or otherwise). [ 20 ] The Commission advised Ms.

Best her request was denied, by letter dated January 15, 2018. In explaining the denial, the adjudicator repeated the language of the CHS Report. Also, the Report and adjudicator both noted that, during the evaluation, Ms. Best reported the medical marijuana also relieves symptoms which are not related to her workplace injury. [ 21 ] The Appeals Tribunal heard Ms. Best’s appeal on June 18, 2018, and dismissed it with reasons for decision dated September 4, 2018. After setting out a clear and full

summary of the facts and issues, the decision provided the following reasons for denying Ms. Best’s request: The question is whether medical marijuana is [a] medical aid that is “necessary” for the appellant as a result of her 2002 workplace accident. On the one hand, we have the appellant’s anecdotal evidence with respect to the benefits she derives from medical marijuana. I accept the appellant’s evidence in this regard . Her use of medical marijuana is also supported by her family physician and Dr. Forgeron.

However, from the information in the Appeal Record and the arguments presented at the hearing of this appeal, neither appears to have engaged in any degree of rigorous assessment or analysis before prescribing this medication. I am reminded of Dr. Elias’s testimony in the preliminary motion that only 13 percent of physicians adhere to the National Guidelines and that “it is the ‘wild west’ of medical marijuana” [page 17 of 19 of decision 20188625]. I also accept that evidence.

The Commission has the power to determine the necessity, character and sufficiency of medical aid to be furnished to an injured worker as a result of a workplace accident (subsection 41(3) of the WC Act ). In exercising that power, the Commission has a positive obligation to ensure the medical aid furnished is medically effective and does more good than harm. Anecdotal evidence in this regard is not, and cannot be, enough .

When it comes to medical benefits associated with marijuana, strong medical evidence to support any particular use remains lacking, as confirmed by the College of Physicians and Surgeons of New Brunswick, Health Canada and The College of Family Physicians of Canada. In the face of positive anecdotal evidence, the medical community has been left in limbo . There is currently not enough scientific literature on the subject to support the approval of medical marijuana as a requirement in relation to the appellant’s compensable injury .

As a result, I accept the conclusions of CHS that at this point in time, there is no medical indication for the use of dried cannabis or pharmaceutical cannabinoid for the appellant’s workplace injury . [paras. 37-42] [Emphasis added.] [ 22 ] The Appeals Tribunal’s decision refers to testimony at a preliminary motion. That motion was a request by Ms. Best for the Tribunal to rule the CHS report inadmissible. She maintained the involvement of CHS gives rise to a reasonable apprehension of bias, since, she claimed, it is too closely connected to the Commission and not impartial.

She also argued CHS has a conflict of interest because it had previously reviewed a report for the Commission. The motion was heard immediately prior to the appeal on January 18, 2018. The Appeals Tribunal dismissed the motion by a decision dated July 10, 2018 [Decision 20188625]. This decision is not part of Ms. Best’s appeal to this Court. III. Issues on Appeal [ 23 ] Ms. Best’s written and oral submissions concisely distill her grounds of appeal and request for relief into the following two assertions:

a) despite having accepted Ms. Best’s evidence of her personal experience using medical marijuana to manage her chronic myofascial pain, the Appeals Tribunal erred in law by disregarding such evidence as “anecdotal evidence” and failing to make its decision based on the real merits and justice of Ms. Best’s case, contrary to s. 21(9) of Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act , S.N.B. 1994, c. W-14 (the “ WCAT Act ”); and

b) in view of the evidence of Ms. Best, which was accepted by the Appeals Tribunal, this Court is in a position to and should exercise its power to make the order the Tribunal should have made (under Rule 62.21(1)), namely determine that medical marijuana is “necessary” in relation to her workplace injury and direct the Commission to cover its cost from 2011. [ 24 ] Unfortunately, due to an equipment malfunction, the first 45 minutes of the 79-minute hearing before the Appeals Tribunal were not recorded. As a result, there is no recording of Ms.

Best’s testimony, or of the submissions made by the workers’ advocate on Ms. Best’s behalf (apart from the advocate’s closing comments). [ 25 ] Due to the lack of a transcript of Ms. Best’s evidence, she brought a preliminary motion asking this Court to: (1) set aside the decision of the Appeals Tribunal and order a new hearing; or (2) alternatively, accept her affidavit, which addresses, in a

summary fashion, her missing testimony. It is not disputed that, on an appeal to this Court, a transcript of the proceeding before the Appeals Tribunal is required to be included in the Record on Appeal (ss. 23(1) and (2) of the WCAT Act ). [ 26 ] The Commission opposed Ms. Best’s motion, taking the position that a transcript of her evidence is unnecessary given the issues raised by Ms. Best’s appeal. The Commission argued that the appeal does not put Ms. Best’s evidence in issue and, indeed, the Appeals Tribunal’s decision expressly states that it accepted her evidence.

The Commission advised that, if the Court were to conclude that not having the missing portion of the transcript was prejudicial to Ms. Best’s appeal, it takes no position on whether the Court ought to order a new hearing before the Appeals Tribunal or accept Ms. Best’s affidavit and determine the appeal. The Commission took no exception to the contents of Ms. Best’s affidavit. In reply, Ms.

Best advised that if this Court concludes it can allow the appeal, based on the current record and without her affidavit, her motion is unnecessary, and it is withdrawn. [ 27 ] After hearing the parties on the motion, we heard Ms. Best’s appeal. Given the reasons that follow, I will treat Ms. Best’s motion as withdrawn. IV. Analysis A. Standard of review

[28] The scope of the right to appeal a decision of the Appeals Tribunal is found in s. 21(12) of theWCAT Act: 21(12) Any decision, order or ruling of theAppeals Tribunal shall be final, subject onlyto an appeal to the Court of Appeal involvingany question as to its jurisdiction or anyquestion of law. 21(12) Toute décision du Tribunal d’appel estdéfinitive, sujet seulement à un appel devantla Cour d’appel concernant toute question decompétence ou de droit. [29] This provision has been broadly and purposively interpreted.

Correctness is the standard forpure questions of law, and reasonableness is the standard for questions of mixed law and fact. As explained in VSL Canada Ltd. v.Workplace Health, Safety and Compensation Commission and Duguay et al., 2011 NBCA 76, 376 N.B.R. (2d) 292, per DrapeauC.J.N.B. (as he then was) for the Court: The object of the WHSCC Act and the WC Act as well as the jurisprudence emanating from this Court since the enactment of s. 21(12)militate strongly against a narrow

interpretation of the phrase “involving any question as to its jurisdiction or any question of law”. Afterall, the Legislature granted the right of appeal on questions of law and jurisdiction, without any words of limitation.

The stakeholders,including employers and the working men and women of this Province, would be ill-served by reading into s. 21(12) restrictions on thebroadly formulated right of appeal that would limit the range of permissible error-correcting intervention by this Court. […] Correctness is the review standard for pure questions of law and jurisdiction while reasonableness is the applicable review test forquestions of mixed law and fact […] [paras. 24 and 25] [30] When the Appeals Tribunal misconstrues critical evidence or, more broadly, fails to make itsdecision on the merits and justice of the case, as required by the statute, it commits reversible error of law.

B. Did the Appeals Tribunal err in law by disregarding Ms. Best’s evidence of her experience using medical marijuana to manageher chronic myofascial pain, on the basis that it is “anecdotal evidence” and fail to make its decision based on the real merits andjustice of Ms. Best’s case? [31] As noted, Ms.

Best maintains the Appeals Tribunal erred in law by concluding that evidenceregarding her use of medical marijuana for chronic pain was “anecdotal” and by deciding that such “[a]necdotal evidence in this regard isnot, and cannot be, enough” in the face of a lack of research to support the use of medical marijuana (either pharmaceutical cannabinoidsor dried marijuana) for chronic myofascial pain.

She submits the evidence of her personal experience, which the Tribunal accepted, is not“anecdotal” and the Tribunal was wrong to effectively disregard it and/or conclude it was irrelevant in the absence of research to supportits use. [32] The Commission does not dispute that the Appeals Tribunal was required to consider Ms.

Best’sevidence and decide her claim “on the real merits and justice of the case,” and the failure to do so would constitute an error of law.However, it submits the Tribunal did so; it maintains the Tribunal simply gave more weight to CHS’s Report, which opined that, in theabsence of research to establish the efficacy of medical marijuana for Ms. Best’s condition, its use was not indicated or necessary. [33] Ms. Best also notes the Appeals Tribunal’s determination is inconsistent with six previousdecisions of the Appeals Tribunal.

In these decisions, the Tribunal considered the injured workers’ evidence of their personal experiencewith medical marijuana and concluded such subjective evidence was sufficiently weighty to establish that medical marijuana wasnecessary, despite evidence of a lack of research supporting its efficacy in relation to the type of pain and/or symptoms at issue. Ms. Bestacknowledges, correctly, that these decisions, or similar decisions of other provinces, were not binding on the Appeals Tribunal in hercase.

However, she argues they properly reflect a weighing of the subjective evidence of the injured worker against the other evidence inorder to decide a claim based on the real merits and justice of the case. To make the point, Ms. Best reproduced key parts of each ofthese decisions, including the following passage from 20178498 (Re), (NB WCAT): In this case, the appellant’s subjective pain complaints have been supported by objective medical evidence.

He has chronic pain relatedto his injury, and has tried many treatments over the years to improve his condition and increase his ability to perform his activities ofdaily living. He has progressed to a point where medicinal cannabis is prescribed, and while the Commission discounts the opinion of

Dr. Smith in favour of reported recommendations, I cannot agree that this is a reasonable decision. The reports referred to in Commission directives are certainly useful as guidelines, but this is a specific person with a unique case, and a recommendation from a physician. […] […] Ultimately, the WC Act provides that a claimant “shall be entitled to such medical aid as is necessary as a result of the accident.”. The appellant is living in chronic pain because of his workplace-related injury, and he has been recommended a medication which significantly assists in pain management.

Is this necessary as a result of the accident? It is necessary, he subjectively states, to perform his activities of daily living, and is the only treatment he has tried which consistently manages his pain and does not have adverse side effects. [paras. 35 and 37]

(1) The Directive [ 34 ] The part of the Directive that pertains to “medical marijuana” begins with an identification of what that phrase means. It notes the term is often synonymous with “dried marijuana;” however, it explains that, for the purposes of the Directive, “medical marijuana” includes both pharmaceutical marijuana and dried marijuana. [ 35 ] However, the Directive focuses largely on dried marijuana.

Indeed, it is under the heading “Dried (Non-Pharmaceutical) Marijuana” that the Directive provides the background for its “Recommendation on authorization of Coverage.” This background emphasizes the lack of research regarding the use or benefits of dried marijuana and the additional risk associated with it being smoked. Here the Directive reproduces portions of position statements issued by: (1) the Canadian Medical Association, (2) the College of Family Physicians of Canada, and

(3) Health Canada. There can be little doubt about the lack of research regarding the efficacy of dried marijuana or the risks associated with its use (including the additional risk related to smoking it), especially when compared to the research regarding pharmaceutical cannabinoids/marijuana and the ability to carefully dose pharmaceutical cannabinoids. These statements include the following excerpts from a Canadian Medical Association’s position paper, dated 2011 and accessed by the Commission for the Directive on October 20, 2015: In

summary, there remains scant evidence regarding the effectiveness of the herbal form of marijuana (e.g. smoked) as accessed through Health Canada’s MMAR program . The generalizability of the conclusions from published studies are limited by methodology […] and very small sample sizes. While it may be the case that medical marijuana is efficacious, scientific evidence comparable to other prescription pharmaceuticals is still lacking. Additionally, there is insufficient information about long-term effects and pharmacodynamics such as interactions with other medications and dose response curves.

Pharmaceutical cannabinoids have undergone clinical trials to demonstrate safety and effectiveness, and have been approved for use through the Food and Drug Act of Canada. Of note is that in this format, the toxic by-products of smoked marijuana are avoided . The active ingredients of cannabis, or synthetic cannabinoids, THC, can already be prescribed as an oral capsule (nabilone) and as an inhaled spray (Sativex).

Lexicomp drug information database accessed from Canadian Medical Association website on Oct. 20 2015 lists approved indications as: • Neuropathic pain, • Spasticity in multiple sclerosis; and • Moderate to severe cancer pain. Use in other types of chronic non-cancer pain and in PTSD is not an approved indication . [Emphasis added.] The last two paragraphs do not appear to be a passage from the Association’s paper, but rather a finding from a database linked from the Association’s website. [ 36 ] As part of this background, the Directive concludes that there “continues to be a lack of medical

evidence to support the use of smoked marijuana in much of the context that WorkSafeNB is being asked to cover payment.” [ 37 ] The Directive also notes and reproduces the following 7 recommendations (of 15) issued by the College of Family Physicians of Canada in September 2014 “for prescribing dried cannabis (marijuana)”: Recommendation 1 There is no research evidence to support the authorization of dried cannabis as a treatment for pain conditions commonly seen in primary care, such as fibromyalgia or low back pain… Authorizations for dried cannabis should only be considered for patients with neuropathic pain that has failed to respond to standard treatments.

Recommendation 2 If considering authorizing dried cannabis for treatment of neuropathic pain, the physician should first consider:

a) adequate trials of other pharmacologic and nonpharmacologic therapies; and

b) an adequate trial of pharmaceutical cannabinoids. Recommendation 3 Dried cannabis is not an appropriate therapy for anxiety or insomnia. Recommendation 5 Dried cannabis should be authorized with caution in those patients who … Are heavy users of alcohol or taking high doses of opioids or benzodiazepines or other sedating medications prescribed or available over the counter. Recommendation 12 The physician should manage disagreements with patients about decisions around authorization, dosing, or other issues with unambiguous, evidence-based statements.

Recommendation 14 Given the weak evidence for benefit and the known risks of using cannabis, the only sensible advice for physicians involved with authorizing dried cannabis is the maxim “Start low, and go slow”.

Recommendation 15 Although it is not required by the Marijuana for Medical Purposes Regulation, physicians should specify the percentage of THC on the medical document for all authorizations for dried cannabis, just as they would specify dosing when prescribing any other analgesic. [ 38 ] Under the heading “ Recommendation on Authorization of Coverage ,” the Directive states, “with the exception of the conditions listed”, the Commission “generally does not approve medical marijuana, and if approving medical marijuana generally not:” • dried marijuana because of a lack of guidance for prescribers on safe dosing (causing a risk of harm from cognitive impairment), • smoked form of dried marijuana (because of risk of cancer).

While the Directive does not contain a single list of the conditions that are excepted (and for which medical marijuana is more readily approved), it indicates such conditions include: moderate to severe cancer pain, spasticity in multiple sclerosis and neuropathic pain.

These are the conditions or uses approved on the Lexicomp drug information database, and which are identified in the Directive. [ 39 ] In relation to “symptom management [of] chronic neuropathic pain,” the Directive recommends the use of medical marijuana as a third or fourth tier treatment, after other options have been tried. [ 40 ] Concerning other forms of chronic pain, the Directive provides for the following approach: If symptom management is for other forms of chronic non-cancer pain, WorkSafeNB notes that while guidelines currently do not recommend the use of medical marijuana and its use is “off-label”, research into efficacy is evolving .

Conditions for which WorkSafeNB might cover medical marijuana in the symptom management of other forms of chronic pain, after traditional forms of treatment have failed, include: • Major trauma • Failed surgery • Harm reduction – the worker is on significant amount of opioids with a high risk profile for death from respiratory depression Otherwise, coverage of medical marijuana for chronic non-cancer pain is decided on the “merits of the case ”.

If symptom management is for psychological conditions (e.g., PTSD) , WorkSafeNB notes that while guidelines currently do not recommend the use of medical marijuana and its use is “off-label”, research into efficacy is evolving. Coverage of medical marijuana is decided on the “merits of the case” .

For anything not covered above, coverage of medical marijuana is decided on the “merits of the case”. “Merits of the case” evaluation: for consistency and incorporation/synthesis of the latest research into its decision-making process, WorkSafeNB will use Canadian Health Solutions to evaluate the “merits of the case.” [Emphasis added.] [ 41 ] The Directive recommends that, to pay for medical marijuana, “[t]raditional forms of treatment have been tried and have failed to alleviate the worker’s symptoms.” And, if medical marijuana is approved, the “recommendation is generally for pharmaceutical marijuana since this form of marijuana contains the same active ingredients as non-pharmaceutical marijuana”.

It notes that dried marijuana can be contaminated with chemicals and smoking it may increase the risks of lung cancer. [ 42 ] Lastly, if “the decision is to cover payment of dried marijuana,” the Directive provides that the Commission: • Gathers information on prior use of marijuana, concentration of THC and CBD and dosing instructions as per practice with pharmaceutical drugs, expected duration of treatment. • Pays the worker to purchase dried marijuana from an approved source. • Recommends the worker use a vaporizer instead of smoking, and covers the cost of the vaporizer.

• Expects a daily dosage of dried marijuana to be 5 g or less. • Expect workers on marijuana for all forms of chronic non-cancer pain to be on a daytime formulation that is high in CBD (high analgesic effect, low cognitive impairment effect) and low (9% or less) in THC (low analgesic effect, high cognitive impairment effect).

A high THC concentration at bedtime generally allow sufficient time for the cognitive effect to wear off by morning. • Refers the worker to Canadian Health Solutions to evaluate the “merits of the case” when dosing is not consistent with expectations (e.g., the worker has been using dried marijuana from non-approved sources with a very high concentration of THC – query dosing appropriate in this case; query develop a game plan to move to high CBD and low THC). [ 43 ] The Directive does not identify what criteria and/or factors are to be assessed when deciding, on the “merits of the case,” whether to fund medicinal marijuana for use with chronic non-cancer pain, including pain which does not have a neuropathic component.

However, what is clear is that it does not preclude approval for such pain and the decision will depend on the circumstances of the injured worker. Also, while the Directive indicates that pharmaceutical marijuana is preferable, for plain and obvious reasons, it clearly contemplates that dried marijuana can be approved (and the Commission will pay the cost for a vaporizer, to avoid it being smoked). Simply put, the Directive indicates that medical marijuana will be supported where the “merits of the case” justify its use.

(2) The “merits of the case” evaluation by CHS [ 44 ] The CHS evaluation requested by the Commission included an assessment of, and is based on, the following: 1) Biopsychosocial Intake Questionnaire, Psychometric Testing and Substance Use Screen, administered/undertaken by Vance McLaren, PhD at the CHS Clinic on December 18, 2017; 2) History and Physical Examination by Dr. Neil Manson at the CHS Clinic on December 18, 2017; 3) Psychosocial Interview by Glenn Cronk, M. Ed. via phone on December 19, 2017; 4) File review by Dr. Rachel Hill-Elias; 5) Occupational medicine review by Dr.

David Elias, and 6) Multidisciplinary Discussion between Dr. Manson, Dr. Hill-Elias, Dr. Elias and other medical members of the CHS team. [ 45 ] The CHS Report, dated December 29, 2017, is divided into two parts. The first includes a review of Ms. Best’s history with the Commission and CHS’s assessment of her condition and its prognosis (at pp. 3-40). The second addresses the Marijuana Review Process, which outlines CHS’s assessment to determine whether the use of medical marijuana is necessary, based on its findings from the first part. [ 46 ] The first part of the Report summarizes Ms.

Best’s history and her current condition and circumstances. The Intake Questionnaire notes she was 59 at the time of the evaluation and she reported a benefit to using medical marijuana in relation to “headaches, pain and to make sure she eats and sleeps.” She indicated she does not sleep well because of the pain and headaches, and she only sleeps for brief periods. During the Substance Use Screening, Ms. Best indicated that, as one of the positive results of using cannabis, she feels less pain in her back, neck and head.

She uses approximately 3g a day and uses a vaporizer for dried marijuana, and oils are ingested. She also makes a topical cream for legs and arms. She reported that, until after the accident, she had not used marijuana since she was a teenager. In her Psychosocial Interview, she indicated that medical marijuana “very much support[s] her ability to work and added that she uses a marijuana product with low THC levels in the morning.” During the same interview, Ms. Best also indicated that she was involved in a motor vehicle accident in 2015 that resulted in an injury to her knee. [ 47 ] Dr.

Manson, who conducted the physical examination of Ms. Best, concluded she has “[c]hronic musculoskeletal pain with no significant abnormality noted clinically or radiologically”, and there is no identifiable pain generator and no neuropathic signs or symptoms. [ 48 ] The

summary of CHS’s review/examination/assessment of Ms. Best and her record is provided under the heading “Multidisciplinary Discussion and Conclusions (Dr. Manson, Dr. Hill-Elias, Dr. Elias).” This includes the following:

[Dr. Manson’s examination] fails to identify any objective pathology on physical examination. There is no objective physical impairment. There is no neuropathic pain generator identified. Symptoms and findings of tenderness on examination are subjective in nature . [Emphasis in Report] [ 49 ] CHS also provides its diagnoses of Ms. Best’s workplace injury:

a) Soft tissue injury in 2002 involving the upper back/scapular region – resolved;

b) Post-injury chronic soft tissue pain involving neck and upper back, no objective physical impairment identified; […] [Emphasis in Report.] [ 50 ] For Ms. Best’s “compensable condition (chronic soft tissue pain),” CHS recommends the following treatment:

a) Simple non-opioid analgesic agents according to the WHO Analgesic Ladder including NSAIDs +/- acetaminophen as required, tricyclic antidepressant agents such as nortriptyline or amitriptyline, pregabalin and duloxetine. It is noted that her reported intolerance to multiple medications may be largely related to her reluctance to use pharmacologic agents and her preference for “natural” therapies rather than true adverse effects of any given medication;

b) Focused and general conditioning with attention to posture and core strengthening;

c) Ergonomic adjustments as required;

d) There are no medical restrictions and activity should be encouraged; and

e) Education regarding the nature of her diagnosis with focus on maintaining activity rather than elimination of pain; [ 51 ] The final part of the Report, the “Marijuana Review Process”, begins by addressing the difference between the historic diagnosis of Ms. Best’s condition and the diagnosis of CHS, which disputes the diagnosis of myofascial pain. It states that, although a “diagnosis of myofascial pain disorder has been assigned to Ms.

Best’s chronic pain condition throughout the course of this claim”, since there were “no trigger points identified on current CHS clinical assessment”, the earlier diagnosis of myofascial pain syndrome “cannot be supported and the diagnosis of chronic soft tissue pain is assigned by exclusion of any objective medical pathology.” [ 52 ] In relation to the scientific evidence for the use of dried cannabis for Ms.

Best’s condition, soft tissue pain, the Report notes there is “no research evidence to support the authorization of dried cannabis as a treatment for pain conditions commonly seen in primary care, such as fibromyalgia or low back pain […] [and it] should only be considered for patients with neuropathic pain that has failed to respond to standard treatments” (College of Family Physicians of Canada Authorizing Dried Cannabis for Chronic Pain or Anxiety – Preliminary Guidance (2014)).

It concludes: “ Based on the above, there is insufficient evidence to support the use of dried cannabis (in any form) for chronic soft tissue pain ” (emphasis in Report). [ 53 ] Similarly, in relation to the use of dried cannabis for sleep disturbance, anxiety or insomnia, the Report concludes: “ Based on the evidence above, there is no anticipated benefit for the use of dried cannabis (in any form) for chronic soft tissue pain in the absence of an objective neuropathic pain generator. […] There are higher-evidence standard hypnotic agents available, some of which would have the indication for chronic pain, such as the tricyclic antidepressants nortriptyline and amitriptyline” (emphasis in Report).

(3) The decision of the Appeals Tribunal [ 54 ] As noted, the Appeals Tribunal accepted Ms. Best’s evidence that she derives a therapeutic benefit from the use of medical marijuana for her chronic myofascial pain. The issue is whether the Appeals Tribunal erred in its use of that evidence, given that it also accepted “ the conclusions of CHS that at this point in time, there is no medical indication for the use of dried cannabis or pharmaceutical cannabinoid” for Ms. Best’s workplace injury . [ 55 ] To be clear, the Appeals Tribunal’s decision to dismiss Ms.

Best’s appeal did not turn on the fact the CHS Report challenges the diagnosis of Ms. Best having chronic myofascial pain, and it identified issues, or “amber flags”, in relation to Ms. Best’s response to chronic pain. Additionally, the Tribunal did not reject Ms. Best’s evidence that her efforts to manage pain by other means were unsuccessful due to an inability to tolerate side effects, including those that arose from an otherwise successful trial of the pharmaceutical cannabinoid Cesamet. [ 56 ] Ms.

Best maintains that, having accepted her evidence, the Appeals Tribunal erred in law by misapprehending it as “anecdotal”, particularly in relation to the therapeutic benefit she receives from medical marijuana, and, by disregarding such evidence, failing to make its decision based on the real merits and justice of the case, as required by s. 21(9) of the WCAT Act . [ 57 ] There is no dispute that the Appeals Tribunal was required to make its decision based on the real merits and justice of the case. Indeed, the Commission acknowledges the Appeals Tribunal would have erred in law had it disregarded Ms.

Best’s evidence on the basis it is “anecdotal.” However, as noted, the Commission submits the Tribunal accepted Ms. Best’s subjective evidence of therapeutic benefit but, after considering all the evidence, it gave greater weight to the evidence that there is a current lack of research establishing medical marijuana provides a therapeutic benefit for chronic soft tissue pain, as articulated in the CHS Report. [ 58 ] The decision of the Appeals Tribunal must be read in context, having regard to the pleadings and the live issues at the hearing .

Clearly, the Tribunal recognized its obligation to consider the full evidentiary record; it stated as much in its decision to accept the CHS Report in evidence and dismiss Ms. Best’s preliminary motion (Decision 20188625): In determining the merits of the appeal, the CHS report will be considered and given due weight considering its relevance, necessity, reliability and absence of bias. However, it is but one piece of the evidence.

All the evidence, including the testimony of the appellant with respect to the therapeutic benefits cannabis provides her, will be considered by this Tribunal in determining the merits of the appeal. [para. 51] [Emphasis added.] [ 59 ] Also, the Appeals Tribunal set out fully, in the decision appealed, Ms. Best’s history and her evidence. [ 60 ] However, the Appeals Tribunal plainly stated the reasons for its decision in the decision’s final paragraphs. It explained that Ms.

Best’s evidence of the therapeutic benefit she receives from the medical marijuana is “anecdotal evidence” that cannot be enough to establish the necessity of medical marijuana (either pharmaceutical or dried) in the absence of “strong medical evidence to support any particular use”: […] the Commission has a positive obligation to ensure the medical aid furnished is medically effective and does more good than harm. Anecdotal evidence in this regard is not, and cannot be, enough .

When it comes to medical benefits associated with marijuana, strong medical evidence to support any particular use remains lacking , as confirmed by the College of Physicians and Surgeons of New Brunswick, Health Canada and The College of Family Physicians of Canada. In the face of positive anecdotal evidence, the medical community has been left in limbo . There is currently not enough scientific literature on the subject to support the approval of medical marijuana as a requirement in relation to the appellant’s compensable injury . [paras. 39-41]

[Emphasis added.] [ 61 ] Ms. Best’s evidence of pain reduction, assistance with sleeping and therapeutic benefit generally, is Ms. Best’s first-hand account of her experience; it is “direct evidence” as defined by Commission policy. It may be fairly characterized as “subjective,” but it is not “anecdotal,” in the sense that it consists of an account or observation by or from others. Even if the characterization of Ms. Best’s evidence as “anecdotal” was intended by the Appeals Tribunal to be synonymous with “subjective,” the analysis still reflects error. The Tribunal disregarded this evidence.

It concluded that, without “ enough scientific literature on the subject to support the approval of medical marijuana,” Ms. Best’s accepted evidence was effectively irrelevant. In other words, the Tribunal concluded that, in the absence of “enough scientific literature on the subject,” the analysis need not go any further because a claim such as Ms. Best’s must be rejected, regardless of her accepted evidence to the contrary. If the Tribunal’s decision does not reflect an error of law because it misapprehended Ms.

Best’s evidence as anecdotal, it undoubtedly reflects error by failing to decide the case on its merits. [ 62 ] Finally, when the Appeals Tribunal summarized Ms. Best’s position, it referenced the earlier decisions of the Tribunal that Ms.

Best relied upon, which considered, accepted and preferred the evidence of injured workers regarding the benefit of medical marijuana, notwithstanding the evidence of the lack of research or scientific literature to support a particular use; however, the Tribunal did not explain why it chose to treat so differently the relevance of this particular injured worker’s evidence in view of the absence of scientific evidence to establish efficacy.

Although not binding, comity and predictability are both compelling reasons to at least directly confront, if not rationalize, what is clearly a different path to a determination. C. Should this Court order the Commission to cover the cost of Ms. Best’s medical marijuana? [ 63 ] In asking this Court to make the decision the Appeals Tribunal ought to have made, Ms.

Best maintains the record establishes the use of medical marijuana is necessary, within the meaning of the Act , even without a transcript of her evidence. [ 64 ] The record before the Appeals Tribunal was comprised largely of documents from the file maintained by the Commission since 2002. At the hearing before the Tribunal, the Commission’s representative reviewed this history to provide background; however, the Commission’s opposition to Ms. Best’s appeal to the Tribunal was based primarily on the CHS Report, not on anything from its file. [ 65 ] The unique circumstances upon which Ms.

Best relies to demonstrate the necessity of her use of medical marijuana are reflected in the facts that follow.

(1) The record of Ms. Best’s injury and claim [ 66 ] The record includes a large number of documents, reports and letters from the medical practitioners who treated Ms. Best, as well as those who reviewed her condition. [ 67 ] Ms. Best is consistently described as having suffered a mid-upper back, soft tissue injury, which produces back, shoulder and neck pain, with headaches, and, occasionally, a tingling or numbness in her arms and/or hands. She also reported disrupted sleep on a nightly basis. From the beginning, Ms.

Best took pain medication and muscle relaxants, as prescribed by her family physician, but she had a difficult time due to intolerances and adverse reactions. With his assistance, she continued trials of different medications. [ 68 ] In June 2002, Ms. Best began physiotherapy and in July/August she participated in a Work Conditioning Program at the Workers’ Rehabilitation Centre. A return to work evaluation was undertaken with a gradual return to work that began in September. [ 69 ] During the fall of 2002, the Commission approved acupuncture treatment by Dr. John Yang, twice a week.

It also made a physiatry referral to Dr. Colleen O’ Connell. In the referral, the Commission advised that it felt Ms. Best’s return to work should have progressed more quickly and it felt that Ms. Best’s fear about further injuring herself was a factor.

[ 70 ] Dr. O’Connell saw Ms. Best on January 15, 2003. Her report identified the issue/complaint as “[e]ight month history of diffuse thoracic, periscapular and peri-shoulder and headache pain following muscle strain injury[.]” Describing Ms. Best’s report of her complaints, Dr. O’Connell stated: With increased activity she experiences pain symptoms predominantly involving the neck, shoulders and periscapular region. She has pain going across the shoulders and tight muscular knots between the shoulder blades.

She has stabbing type pain below the shoulder blades and there is always pain along the thoracic and cervical spinal column up to her neck. Twisting movements increase the pain. Acupuncture has had some benefit but not long lasting. […] She also has regular headaches which she described as predominantly occipital. They can radiate to the frontal area or they can occur independently just at the occiput or frontal. There is no lateralization. Pain is constant and can last upwards of weeks. Her sleep is poor and she typically awakes once or twice during the night and is typically awake from 4 a.m. onward.

She does not have too much difficulty falling asleep. Currently she is on no medications. She has a long history of adverse reactions and poor tolerance to numerous types of medication. She had GI upset with anti-inflammatories and pain medications (Tylenol #3, Percocet). She believes she has tried Amitriptyline but was actually having more of a stimulative effect, waking after two hours hyperactive. She vomited profusely with Tylenol #3. [ 71 ] From her examination, Dr.

O’Connell noted that: To palpatory examination, she had trigger points with typical referred pain patterns bilaterally within the upper trapezius, levator scapulea, and the lower rhomboids. She had irritation bilaterally in the region of the greater occipital nerve and was tender with palpitation throughout the paracervical and parathoracic muscles. There were a palpable hypertonicities within the paraspinals. Overall her presentation is consistent with a myofascial pain syndrome. [ 72 ] Dr.

O’Connell’s recommendations were: 1) Given her poor tolerance to numerous medications, although I believe she would benefit from trial with the tricyclic anti- depressants, at this point in time I would not recommend it. 2) I strongly feel that she would benefit from focal work on trigger points/myofascial release techniques. Perhaps this could be done through referral to a chiropractor or through a physiotherapist who has worked in myofascial release techniques.

In the interim, I have provided her with a prescription for massage therapy […] 3) She has returned to full time work and is taking two courses at the university. However she remains limited in her ADLs at home and her recreation/leisure pursuits. One type of therapy/exercise which I believe would be beneficial for her is pilates. I am uncertain as to the availability in Saint John but often there are classes tailored to individuals with myofascial pain syndromes.

Exercises emphasize muscle strengthening and flexibility within pain tolerance. [ 73 ] Lastly, in response to the request made by the Commission in its referral, Dr. O’Connell explained to Ms. Best that all pain is not a sign of ongoing injury: I spent some time today discussing with Margot why pain syndromes do occur and how they are not necessarily a sign of ongoing tissue injury. I also reviewed with her pacing, maintaining an active lifestyle but not to the point of excruciating pain that wipes her out for days.

If she continues to have problems with the above, she may have to return to more structured physiotherapy.

[ 74 ] Following the assessment of Dr. O’Connell, the Commission referred Ms. Best to a six-week Pain Management Program at the Workers’ Rehabilitation Centre. The admission diagnosis for this “Interdisciplinary Rehabilitation” program was “Upper dorsal-interscapular thoracic (Myofascial Pain Syndrome).” [ 75 ] On discharge from the Pain Management Program, Dr. Jose Ledezma, a staff physician, confirmed the admission diagnosis of myofascial pain syndrome. His examination revealed results similar to those reported by Dr. O’Connell.

He noted that it is “challenging” to find appropriate pain control medications given her “pharmacotherapy sensitivities.” Dr. Ledezma’s report of May 27, 2003 provides the following

summary of Ms. Best’s participation: Miss Best underwent the six-week interdisciplinary Pain Management program at WRC with interventions from medicine, psychology, nursing, physiotherapy, occupational therapy, dietitian and assistive devices. Throughout her stay at the program, Miss Best had from time to time difficulties following the daily

schedule and she had to take breaks and go to rest in the health unit and to have moist heat once in a while. Due to exacerbation of symptoms she meets several of the therapeutic sessions. Due to the background of pharmacological allergies, she did not seem interested in trying different pharmacological preparations. She benefited partially from a course of biofeedback. She was willing to try topical anti-inflammatories (Indomethacin 10% in a speed gel) which apparently did not make any difference in her myofascial pain.

She had a trial of muscle relaxants (Zanaflex 2 mg) 1 tablet daily at 9:00 p.m., however, she was not able to tolerate it and was discontinued on March 13, 2003. At the beginning of April 200[3] a different topical analgesic gel was suggested (Ketoprofen, Cyclovenzaprine and Lidocaicane) to apply 3x a day which on discharge apparently was giving some partial pain relief. […] Due to the multiple allergies, Ms.

Best is a challenging case in terms to use other alternative analgesics preparations and she seems to be inclined to use alternative medicine approaches and natural remedies in view of the past experience of allergies with conventional medications. [ 76 ] As part of this interdisciplinary program, Ms. Best received physiotherapy that included myofascial release techniques, as recommended by Dr. O’Connell. Also, Ms.

Best attended one-hour psychology lectures, three times a week, and she met a psychologist on a one-on-one basis on a number of occasions, where she received information that included “coping with and managing her chronic pain.” [ 77 ] In June/July 2003, Ms. Best was accommodated by her employer and began working as a receptionist at the School District Office. The Commission had undertaken a Vocational Evaluation and the position of teacher’s assistant was classified at the medium physical demands level. The assessment of Ms.

Best concluded she had a work restriction and the ability to perform safely at a sedentary level. [ 78 ] Also, beginning in July 2003, Ms. Best began receiving treatment from a chiropractor. This would continue until August 2009. [ 79 ] In September 2003, Ms. Best experienced difficulty in her new position at work. Dr. Foster reported that he did not feel she was capable of performing the tasks of that position. The Commission ordered a job site evaluation; however, it expressed the view in a letter to Ms.

Best that it “appears that your level of perceived disability exceeds your functional capacity.” This observation was based partially on the prior work capacity evaluation. [ 80 ] Dr. Foster also referred Ms. Best to Dr. Forgeron, a physiatrist, for her “chronic myofascial pain syndrome – neck, shoulders, back.” He requested that Dr. Forgeron “assess re any suggestions to improve pt’s condition.” As noted, Dr. Forgeron would, six years later, support Ms. Best’s application for medical marijuana. [ 81 ] Dr. Forgeron saw Ms. Best on January 27, 2004.

Her examination noted pain with palpation similar to that described in the reports of Dr. O’Connell and Dr. Ledezma. Dr. Forgeron injected a nerve block at the left occipital nerve region, with lidocaine and corticosteroid. At a follow-up consultation, in March 2003, Dr. Forgeron recommended physiotherapy or a personal trainer and discontinuing chiropractic treatments in favour of a trial of massage therapy.

[ 82 ] The chiropractic treatments that began in July 2003 continued. [ 83 ] In February 2007, a flare-up of Ms. Best’s condition put her off work for a number of weeks. The Commission acknowledged that this was related to her compensable injury and accepted her claim. Its medical advisor recommended a two-day evaluation at the Workers’ Rehabilitation Centre, but this was cancelled when she returned to work. [ 84 ] Chiropractic treatments continued through August 2009. While these treatments were paid for by the Commission, the record indicates that, separate from the Commission, Ms.

Best had been attending and paying for acupuncture, massage and Reiki. [ 85 ] In October 2010, Ms. Best wrote to the Commission advising that her constant headaches were giving her a problem with lights. She was told she would have to get some medical evidence that this was related to her workplace injury since the Commission did not have anything on file from her physician since 2007. It only had information from the chiropractor. [ 86 ] Sometime before April 2011, Dr. Foster again referred Ms. Best to Dr. Forgeron. The record does not include Dr.

Foster’s referral or file, and little is known about the circumstances leading up to the examination by Dr. Forgeron on April 14, 2011. Dr. Forgeron’s report notes that Ms. Best “has chronic neck pain and had some relief with Cesamet but could not tolerate it long-term because of diarrhea, constipation and cramping.” It states: She continues to have pain in the shoulders on both sides with a stiffness and tightness centered in the back that radiates up into the neck and shoulders causing posterior headaches.

The headaches are worse in the neck and the occipital region and temporal pressure will help relieve the symptoms. The headaches occur on a daily basis . She has been seen by Dr. MacLean in the past for headaches and she was taking Topiramate with adverse reaction with increased headaches and shakiness. She is seeing Dr. MacLean at the end of the month for follow-up. [Emphasis added.] [ 87 ] Dr. Forgeron supported Ms. Best’s use of medical marijuana. As explained in her “clinical impression and recommendations:” Ms.

Best has chronic soft tissue pain of the thoracic and cervical region which is nonspecific and associated with headaches. There is most likely a non restorative sleep component to her discomfort. [Ms.] Best reports improved sleep and pain with the use of Cesamet in the past, but had to stop its use secondary to side effects. Overall, I believe she is experiencing relaxation as well as pain relief with cannabinoids. I did discuss with her a trial of Sativex buccal or sublingual spray and prescribed, however it was cost prohibitory.

I therefore have agreed to complete her application for Marijuana for medical purposes. With the information provided to me, I have no concern for addiction and I feel she will be compliant with personal use only. [Emphasis added.] [ 88 ] The report also notes that, although Ms. Best had smoked marijuana, she had been using it, at the time, in a vaporized form. Ms. Best did not approach the Commission for her trial of Cesamet or her application for marijuana for medical purposes. [ 89 ] In March 2012, the Commission accepted that Ms. Best had a flare-up of her 2002 injury.

She reported that the pain also included lower back pain that shoots down her left leg and into her foot. The Commission referred her for a physiotherapy assessment and to the Workers’ Rehabilitation Centre. She was advised that the treatment team at the Centre would spend the first 2 to 3 days performing an in-depth assessment of her condition; the purpose was to determine if she required a work recovery program or if local physiotherapy would assist in a return to work. [ 90 ] On May 16, 2012, before beginning the assessment at the Workers’ Rehabilitation Centre, Ms. Best had a follow-up appointment with Dr.

Forgeron. Her report to Dr. Foster indicates that Ms. Best’s “chronic pain […] has improved with the use of inhaled marijuana”. She stated: Margot has noticed with the inhaled vaporized marijuana that she takes in the morning and evening that it is helping with her sleep and managing pain. She also notes that she now has no signs of her irritable bowel syndrome. She has not noticed any other side effects. She is presently living alone. She obtains the marijuana through Health Canada and uses less than 2 grams per day.

[…] I did sign her form for renewal of medical marijuana license. I certainly do not feel there is any evidence of abuse and she seems to be able to manage her pain and function with the medication. There is presently no contraindication for marijuana. I did send her along for a chest x-ray as I like to have patients using inhaled medical marijuana to have one at least every two years. [Emphasis added.] [ 91 ] Following the multidisciplinary consultation at the Workers’ Rehabilitation Centre, which included medical, physiotherapy, occupational therapy and psychosocial evaluations, it was recommended that Ms.

Best receive a multidisciplinary treatment designed to improve her workday tolerance, address ergonomics, and provide active symptom management strategies. As part of this assessment, Dr. Ledezma’s June 5, 2012 report notes: Due to her multiple allergies, Ms. Best has been using alternative medicine approach and natural remedies in view of the past experience with allergic reactions with conventional medications. She indicated that since the daily intake of marijuana through a vaporizer, she is able to manage her chronic pain in a better way.

A new course of interdisciplinary progress of an active rehabilitation program could be in her best interest in preparation for a successful return to her preaccident occupation. On the initial psychosocial questionnaires, she only flagged on the pain and limitations testing at the 79 th percentile. On the rest of the testing, she did not have significant problems.

She seems to be a resourceful lady, pragmatic and straightforward person, who has been using alternative medicine approaches to manage her chronic dorsal pain. [ 92 ] The psychological testing revealed that the key psychosocial rehabilitation barriers were “perceived pain limitations and concerns regarding her occupational future.” Her perceived pain disability was in the high range. The

summary of Ms. Best’s profile notes that: Research has shown that biopsychosocial factors can affect an individual’s functional presentation and may affect the outcome of rehabilitative treatments. Pain is a complex perceptual experience, influencing and influenced by a wide range of factors including biological systems, emotions, social and environmental contexts, pain appraisals, beliefs, attitudes and expectations. Turk and Okifuji, 2002. [ 93 ] Ms. Best began the Work Recovery Program at the Worker’s Rehabilitation Centre on June 4, 2012, and this continued for six weeks. The note to Ms.

Best’s case manager advised that the team “will explain neurophysiology of current pain mechanism, assist with symptom management and provide education regarding coping skills.” [ 94 ] Ms. Best was discharged from the work hardening program on July 13, 2012 to return to full- time work. The discharge summaries noted that: after an individual psychological session and group counselling to address perceived pain limitations and weekly “coping group” sessions, Ms.

Best made improvement regarding her perceived pain limitations and it was lowered, and physical examination following physiotherapy treatments identified “myofascial paraspinal pain” and reported “tenderness on palpitation of the left upper trapezius and bilateral levator scapulae trigger points, tender bilateral paraspinal muscles […] thoracic and lumbar ranges of motion were within normal limits, but increased discomfort in most directions.” [ 95 ] Unfortunately, in November 2012, less that six months after discharge, Ms. Best experienced another flare-up of her chronic neck and back pain.

It was believed to be caused by working at a number of different workstations at various schools, without an ergonomic set up. This claim was accepted. A job site analysis was performed in December 2012 and a work capacity evaluation of Ms. Best occurred in January 2013. At the request of the Commission, the School District offered Ms. Best a new position that accommodated her limitations and she accepted. The Commission “finaled” Ms. Best’s claim in February 2013. [ 96 ] Four years later, in a conversation on March 28, 2017 with a representative of the Commission,

Ms. Best explained that the monthly cost of her medical marijuana for her chronic pain was a hardship and asked that it be paid for by the Commission. [ 97 ] On April 24, 2017, Dr. Foster completed a physician’s progress report in relation to a recent flare-up in Ms. Best’s “myofascial pain.” It reported that her treatment included medical marijuana of 3 grams per day. A report dated May 12, 2017 requested an occupational therapy ergonomic assessment of the workplace. A report from Dr.

Grant, dated May 24, 2017, indicated that, as a consequence of the flare-up, physiotherapy had been recommended and treatment included medical marijuana. A report dated June 5, 2017 reiterated the need for an ergonomic assessment because of the recent flare-up “as her work load has increased.” [ 98 ] The Commission arranged for an ergonomic assessment, but it denied Ms. Best’s request to have the cost of her medical marijuana covered. [ 99 ] In November 2017, Dr.

Foster, in response to questions asked by the workers’ advocate, reported that the use of medical marijuana is beneficial for the symptoms related to Ms. Best’s compensable back injury; he advised that it helps Ms. Best by decreasing her pain and increasing her ability to function. [ 100 ] Lastly, there is the CHS Report, described above. However, t he Report also raises issues that might be raised against Ms. Best’s claim, even if not expressly relied upon by the Commission before the Appeals Tribunal.

In addition to challenging the historic diagnosis of chronic myofascial pain, as noted above, the Report also notes (in the

summary of CHS’s “Multidisciplinary Discussion and Conclusions”): Psychometric assessment undertaken as part of CHS assessment identifies high reporting of pain complaints, a possible bias toward underreporting of psychological concerns and indicators of mild depression. File review reveals the following amber flags identified throughout the course of this claim: high perceived pain limitation, pain-avoidant behaviour, low tolerance and variable effort during objective assessments.

These factors suggest a psychological component to this client’s chronic pain symptoms and possible tendency to somatization, especially in the absence of objective pathology to support her complaints. Psychometric screening suggests a possible tendency to downplay the psychological aspect of her condition. [Emphasis in Report.] [ 101 ] In relation to such “psychosocial condition(s) (pain-avoidant behaviour, pain limitation, possible somatization, indicators of mild depression) ”, CHS recommends:

a) Education regarding the nature of the diagnosis with focus on maintaining activity rather than pain elimination;

b) Psychological support as required;

c) Avoid over-medicalization and excessive investigation/treatment for her condition in the absence of objective pathology as this will likely reinforce chronic pain behaviours;

d) Further evaluation by treating physician regarding psychological status with the initiation of antidepressant therapy if clinically warranted; duloxetine would be the agent of choice given its additional indication for chronic pain of various etiologies . [ 102 ] Additionally, the Report notes that it is not possible to know if Ms. Best has truly attempted traditional medications before she resorted to medical marijuana, and it questioned the degree to which Ms. Best may have rejected prescribed medications based on her preference for natural remedies. [ 103 ] Finally, the Report points out “Ms.

Best reports using dried cannabis for non-compensable chronic migraine headache and multiple symptoms which are not reasonably attributable to her work injury in 2002.” This said, the Report acknowledges Ms. Best had migraine headaches before she suffered the injury in 2002, and it notes that she complains of

different types of headaches, some of which are “likely muscle tension type headaches related to her chronic musculoskeletal pain.” [ 104 ] Favourable to Ms. Best’s claim is that the Report determined, like Dr. Forgeron, there were no contraindications to dried cannabis use for Ms. Best. She was mature, had no addictions and there were no expected adverse effects. [ 105 ] It bears repeating that the Commission did not challenge the evidence of Ms. Best’s circumstances . As its representative explained to the Appeals Tribunal, the Commission had asked CHS to determine if Ms.

Best’s “compensable condition would benefit from the use of medical marijuana” given the difference of opinions between Ms. Best’s treating physician(

s) and the Commission’s internal medical advisor. Its position before the Tribunal was that, relying on CHS’s opinion, “there was no medical indication, nor anticipated benefit for the use of medical marijuana for chronic soft tissue pain [in] the absence of objective neuropathic pain generator.”

(2) Has Ms. Best established that medical marijuana is necessary based on the “merits of the case”? [ 106 ] Ms. Best maintains that, on this record, the Appeals Tribunal would have found in her favour, were it not for the error of concluding her circumstances were irrelevant given the evidence of a lack of scientific research to support the use of medical marijuana for her type of chronic pain. While Ms.

Best does not dispute CHS’s basic representation that the research does not establish the efficacy of either pharmaceutical or dried marijuana for chronic soft tissue pain, she maintains that the opinions offered reflect a “cherry picking” of the research and practices, and the totality of the evidence in this case establishes that her use of dried marijuana is necessary in relation to her compensable injury. [ 107 ] Significantly, the Commission’s general policies respecting medical aid, referred to above, do not address the use of medical marijuana and Ms. Best’s claim was addressed under the Directive.

This said, her prospective claim for coverage after the New Cannabis Policy became effective, in April 2018, is a different thing, as will be explained below. [ 108 ] The Directive makes it clear that a lack of objective scientific research regarding the efficacy of medical marijuana in relation to certain types of pain, and risks associated with its use, forms the basis for the Commission generally not supporting its use.

This is not challenged on appeal, although I note that before the Appeals Tribunal a workers’ advocate argued the Directive is so narrow in its application it conflicts with the Commission’s obligation under the Act to provide medical aid that is necessary in relation to an injured worker’s compensable condition. In any event, the Directive contemplates the Commission fulfilling its obligation under the Act by permitting the ability to pay for medical marijuana for those conditions that are “listed” in the Directive, without further evaluation, and for other conditions, such as that suffered by Ms.

Best, based on a “merits of the case” evaluation. [ 109 ] As concluded in the first part of these reasons, a decision based on the “merits of the case” is not confined to an inquiry into whether there is evidence of research that establishes efficacy of medical marijuana for a particular use; indeed, as noted, the Commission acknowledges the analysis requires the consideration of the circumstances of the injured worker making the request.

However, and even though the Directive acknowledges research into efficacy regarding medical marijuana is evolving, this is not an invitation to ignore the scientific evidence supporting efficacy, or the lack thereof. The Directive emphasizes the importance of the evidence of the efficacy of medical marijuana for the condition under consideration, as well as the risks to the injured worker, particularly those related to dried marijuana.

This is harmonious with the Commission’s general policies on medical aid, which provide that it does not approve treatments that are of unknown benefit or may do more harm than good. None of this is inconsistent with the Commission’s obligations under the Act. [ 110 ] In my view, the evidence regarding the absence of scientific research and/or the broad lack of acceptance of the efficacy of medical marijuana in relation to chronic myofascial pain is compelling enough to preclude its general use for the treatment or management of such pain.

Only in exceptional circumstances, where other, more traditional, presumably more efficacious and less risky, alternatives have failed or are unable to be used, will it be appropriate to determine if resorting to medical marijuana is necessary because the benefit outweighs the risk. [ 111 ] Ms.

Best contends the facts, which are not disputed by the Commission and make her situation exceptional, include: 1) the pain medications tried between 2002 and 2011 to manage the chronic pain from her workplace injury failed to provide relief or otherwise had intolerable side effects (in part due to her irritable bowel syndrome), which included: Lorazepam, Mobicox and other non-

steroidal anti-inflammatory drugs “NSAIDS”, Advil, Zantac, Tylenol 3, Gabapentin, Vioxx and Cytotec; 2) physiotherapy, acupuncture therapy, chiropractic treatments, 3) two trials of a pharmaceutical cannabinoid provided pain relief and assisted with sleeping, but caused adverse side effects; 4) alternative pharmaceutical cannabinoids were recommended and prescribed by Dr. Forgeron, but they were cost prohibitive; 5) her use of dried marijuana is supported by Dr. Forgeron, a specialist in Physical Medicine and Rehabilitation and by Dr. Foster, the physician who has treated her since she sustained the compensable injury in 2002; 6) there are no contraindications t

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