NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

Transcription

1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representative: [X] Form of Appeal: Oral hearing held at Greenwich on December 2, 2010 WCB Claim No.: [X] Date of Decision: February 2, 2011 Decision: The appeal of the July 28, 2010 Board Hearing Officer decision is allowed, according to the reasons of Appeal Commissioner K. Andrew MacNeil.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: This decision addresses an appeal by a Worker* of a Board hearing officer decision dated July 28, In that decision, the hearing officer determined that the Worker was not entitled to a partial commutation of his permanent impairment benefit [ PIB ]. The Worker appealed that decision to this Tribunal by Notice of Appeal filed on August 13, The appeal was set down to proceed by way of an oral hearing, which was held at Greenwich on December 2, The Worker, with legal counsel, was the only statutory participant present. Immediately prior to the hearing, Worker s counsel filed a medico-legal report from one of the Worker s treating physicians, Dr. J. Taiani, surgeon, who specializes in diseases of the eye. In the course of the hearing, Worker s counsel filed three exhibits: W1" is a copy of a federally-issued authorization to possess, and a licence to produce, marihuana; W2" is a long-form authorization to possess dried marihuana, issued by the federal Department of Health to the Worker, and copied to Dr. Taiani; W3" is a long-form personal-use production license issued to the Worker setting out the terms and conditions under which the Worker may produce marihuana for his own use. Following the hearing, the Worker s legal counsel filed written submissions in support of the appeal. These further submissions were received on January 25, No submissions were received from the Employer or the Board. ISSUE AND OUTCOME: Is the Worker entitled to a partial commutation of his PIB? Yes. Based on the calculations provided by the case manager, Long Term Benefits, the Worker is entitled to a five percent commutation of his PIB, yielding approximately $ ANALYSIS: The Worker has an extensive history with the Board and is in receipt of long-term benefits. * This decision contains personal inform ation and m ay be published. For this reason, I have not referred to the participants by name.

3 3 He has applied to the Board for a partial commutation of his long-term benefits (his PIB) so as to finance the initial set-up of his own personal-use marihuana production facility. The marihuana is used to treat a non-compensable eye condition, and the Worker has been taking marihuana for this purpose for some time. Its use appears to be endorsed by his treating eye specialist, based on anecdotal evidence generally, and the Worker s personal experience, specifically. The Worker has been advised by Dr. Taiani that the only alternative treatment, as a pure palliative, is a prescription narcotic. The Worker has testified that he is a recovered narcotics addict, and that it is his strong preference to continue to avoid narcotic use as long as possible. The Worker has also argued, based on his own experience and the advice he has received from Dr. Taiani, that the long-term outlook for his eye condition, were he to rely on narcotics only for pain control, would be the inevitable surgical removal of one of his eyes. Understandably, the Worker would like to avoid this outcome, and has testified that his marihuana usage appears to have controlled the progress of his otherwise untreatable eye condition. In adjudicating this appeal, I acknowledge that the Board s position respecting medical aid assistance excludes the support of marihuana usage for compensable conditions as being inconsistent with (generally accepted) health care practice in Canada. The Tribunal, in many appeals, has not found this policy position inconsistent with the Act and has not otherwise been supportive of the provision of medical marihuana, directly or indirectly, as a consequence of a compensable injury. In this appeal, the Worker is not seeking the direct funding by the Board of medical marihuana for a compensable condition, or for any other. The Worker is seeking the payment of a portion of his PIB through partial commutation. In my view, since the question before me relates to commutation rather than to medical aid, the Worker could just as well be seeking funds to purchase a TENS device. In allowing this appeal, therefore, I am not endorsing the provision of medical marihuana, directly or indirectly, to treat a compensable condition or any other. Board Policy addresses the commutation of permanent impairment benefits and extended earnings-replacement benefits. It reads as follows: 1. The Board may, at its discretion, commute to a lump sum, any compensation paid as a periodic benefit. 2. The Board will commute, without application, a Permanent Impairment Benefit (PIB) if:

4 4 a) the worker's cumulative permanent medical impairment rating is 30% or less; and b) no Extended Earnings Replacement Benefit (EERB) is payable to the worker in connection with the injury. 3. However, the Board may choose not to commute the PIB if the Board determines that the commutation is not to the advantage of the worker. 4. In addition, the Board may, under the following circumstances, commute any periodic benefits (PIB and/or EERB) if: Application a) the commuted benefit is to be used for a purpose approved by the Board (approved purpose is a purpose that is determined by the Board to enhance the worker's vocational rehabilitation beyond that which would normally have been provided by the Board); b) there are no other sources of funds that are accessible and appropriate for the approved purpose; c) the worker is not dependent on the periodic benefit for the necessities of life nor is expected to be in the future; d) the commutation is in the best long-term interests of the worker; e) the worker's injury-related condition has stabilized; and f) the final scheduled review for an EERB (if applicable) has been completed. This Policy applies to workers injured on or after March 23, There is clearly an inquiry to be made, under the policy above, into the Worker s financial circumstances following, his motivations for, and his capacity to absorb, a partial commutation of his permanent benefit. In making this inquiry in commutation decisions, there is a delicate balance to be struck between what could be unwarranted paternalism on the part of the Board and what is often unrealistic planning on the part of a worker.

5 5 In the present appeal, the Worker is meeting his monthly financial obligations with no margin for error or misfortune. In his counsel s submission of January 25, 2011, the Worker declares monthly income of $2,240 per month, and expenses of an identical sum. Of those expenses, $800 is ascribed to the cost of non-prescription medical expenses, and in his testimony before me, the Worker admitted that much of that was for the purchase of illegal marihuana (purchased from criminal drug dealers, as opposed to registered pharmacies). Of the Worker s $2240 monthly income, some $1,150 is received as a monthly compensation benefit, a figure confirmed by the Worker s case manager. The Worker s counsel s proposal is for a partial commutation of the Worker s PIB of five percent, a portion that is valued by the Board at $2, as of December 23, This is in excess of the Worker s initial request for a commutation equal to $2,000. This sum is to be applied to buying and setting up the fixtures and supplies needed for the Worker to produce, himself, a quantity of marihuana which he has been obtaining illegally at a cost of $800 per month. He has testified that he has no alternate source of finance. A partial commutation of five percent of his PIB would reduce the Worker s monthly benefit from $1,150 to $1,128, but would also reduce the Worker s monthly drug expense from $800 to nearly zero (there would still be some small amount attributable to his co-payment obligations for certain prescribed medications, as well as certain operating costs associated with his horticulture). The Worker s position is that, despite a drop in income of $22 monthly, he would be in a financially preferable position without his current level of expenditure on illegally-sourced marihuana. I accept the calculations as made by his case manager in the December 23, 2010 communication to Worker s counsel, and of the Worker s own report of his monthly household economy, but what of the Worker s use of marihuana? His possession and use of marihuana has been sanctioned by the federal Department of Health (see exhibits W1, W2, and W3). It has also been sanctioned by his treating eye specialist, Dr. Taiani. In Dr. Taiani s medico-legal report to counsel of November 23, 2010, he wrote, in part, as follows: The diagnosis at the initial visit and for subsequent visits has been acute angle closure glaucoma of the right eye, with associated corneal decompensation. [The Worker] has had a painful right eye, especially at the time of his initial presentation [November 12, 2009]. The pain has two causes, one being elevated intraocular pressure, and the second, corneal edema and bullous keratopathy. Initial pain control was with narcotic medication. I prescribed

6 6 this medication initially with some concern because of [the Worker s] admitted history of narcotic dependence... It was because of [the Worker s] own reports of superior pain control with marijuana, as opposed to narcotic medication, that I agreed to support his petition for federal approval of medical marijuana... As you know, medical marijuana can be used for pain control, and this was the main reason for my prescribing it. It can also lower intraocular pressure, and although that may have been an added benefit initially, it is less important a factor at the present time. I certainly have some reservations regarding [the Worker s] use of any potential habit forming medication, however, I believe in his case, the use of marijuana to control eye pain is preferential to the use of narcotic medications... So, it would appear that, at least in this case, the funds to be freed-up by a partial commutation would not be used simply to facilitate marihuana usage, but to reduce or avoid narcotic usage. Whatever concerns one may have about the indirect funding of limited marihuana cultivation, in this case it appears to be the lesser evil when juxtaposed against renewed narcotic use by a narcotics addict (one who wishes devoutly to avoid narcotic usage). There is also the apparent medical effect of marihuana use on intraocular pressure, as described by Dr. Taiani, above, and the Worker s own report of superior pain control. I am not competent to challenge Dr. Taiani s medical assertions, and there is no Board medical advisor opinion on the matter. The Tribunal has addressed prior appeals for partial commutation of permanent benefits. I refer the reader to Decision No AD (July 23, 2002, NSWCAT) and Decision No AD (July 17, 2009, NSWCAT) where similar analysis has been made. I have also considered decisions made by the Workplace Safety and Insurance Appeals Tribunal [WSIAT] of the Province of Ontario. In Decision No. 1081/10, dated June 9, 2010, Vice- Chair Marafioti reviewed a series of WSIAT decisions addressing commutation of benefits and the policy considerations to be made in such appeals, and I find those to be consistent with this Tribunal s decisions. In review, it would appear that the Board s own policy criteria listed above would support, on balance, commutation in this case: the Worker has no expectation of vocational rehabilitation; he has no other source of funds; while the Worker is dependent on receipt of monthly benefits, in this case, partial commutation would ease financial pressure; the commutation appears to be in the Worker s long-term best interests (allowing some greater financial freedom, and avoiding dependence on criminal drug suppliers); his injury-related condition has stabilized; and the final scheduled EERB review has been completed.

7 7 Having reviewed the policy and the evidence, I direct that five percent of the Worker s PIB be commuted. CONCLUSION: The appeal is allowed. The Worker is entitled to a five percent partial commutation of his Permanent Impairment Benefit as calculated by the case manager, Long Term Benefits. nd DATED AT HALIFAX, NOVA SCOTIA, THIS 2 Day of February, K. Andrew MacNeil Appeal Commissioner