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The WSIB, medical marijuana and chronic pain

Christine Davies

November 11, 2012

Will Ontario’s Workplace Safety and Insurance Board pay for medical marijuana to treat an injured worker’s chronic pain? The answer appears to be “yes, but not without a fight”.

This is the second installment of Christine’s “sex, drugs and rock and roll” WSIB trilogy. In the first installment, she discussed whether workers in Ontario could get compensation for sex injury. Today’s topic is medical marijuana.

Physicians can prescribe marijuana for the relief of pain with the approval of Health Canada. However, the cost is hundreds of dollars per week. Recently, the Toronto Star featured the case of Danny Auger, whose arm was nearly severed in a 2009 construction accident. The WSIB has refused to pay for his medical marijuana, even though Auger and his doctor have obtained the approval of Health Canada, and even though the WSIB would pay other medically prescribed (and often addictive) painkillers.

Unlike some other provinces, Ontario’s WSIB has no policy with respect to medical marijuana. The WSIB’s practice, apparently, is to deny requests for coverage on the basis that medical marijuana is controversial internationally, and is not listed within the WSIB Drug Benefit Program formulary. The WSIB maintains this practice despite a series of decisions from the Workplace Safety and Insurance Appeals Tribunal which have resoundingly rejected the WSIB’s approach as contrary to the Workplace Safety and Insurance Act, 1997.

The Workplace Safety and Insurance Act states that workers are entitled to “such health care as may be necessary, appropriate and sufficient as a result of the injury”. Healthcare is defined to include “drugs” as well as “such measures to improve the quality of life of severely impaired workers as, in the Board’s opinion, are appropriate.”

The Workplace Safety and Insurance Appeals Tribunal has held that coverage for medical marijuana should be allowed as a measure to improve the quality of life of a severely impaired worker, where the marijuana is prescribed to treat the work-related condition and the worker has the necessary permission of Health Canada. In a number of decisions over the past five years, the WSIAT has consistently ordered the WSIB to cover the cost of buying medical marijuana from Health Canada. (However, the WSIAT recently denied a worker’s request that the WSIB buy him a house so he could grow his own preferred strain of marijuana – you can’t make this stuff up!).

The WSIAT has been overturning WSIB denials on medical marijuana since at least 2007. In all this time, the WSIB has not developed a policy on medical marijuana and apparently has not changed its approach – deny, deny, deny.

Earlier this year, the WSIAT allowed an appeal for medical marijuana, and they’ll likely allow Auger’s appeal as well, based on the previous decisions. But what is the point of making injured workers like Auger wait in pain for several years while the cases wind their way through the appeal procedure? Why put them to the expense of hiring a lawyer or paralegal to press the issue?

It’s time for the WSIB to chill out and relax man. And get a policy.


Christine Davies

Practice Areas

Employment Law, Labour Law