Quite possibly, said a Saskatchewan Queen’s Bench judge in Heilman v Workers’ Compensation Board, 2012 SKQB 361. Carey Heilman suffers from chronic back pain resulting from a workplace injury. After many other kinds of drugs failed to alleviate that, he was prescribed a daily dose of 4 grammes of marijuana, which he consumes by smoking and with a vaporiser. Heilman’s licensed provider currently doesn’t make him pay but is likely to change that, so Heilman claimed the cost of his stash under the provincial workers’ comp scheme. The claim was denied and two appeals also went against Heilman. The appeal tribunal cast doubt on the efficacy of medical marijuana and cited the provincial board’s policy not to compensate a worker for the cost of obtaining, growing or using it. (The board will pay for drugs derived from marijuana in certain circumstances, however.) In reaching its decision, the appeal tribunal also relied on the stated opposition of the board’s medical department and medical consultant to the use of medical marijuana in all cases. Heilman sought judicial review of the last round of appeal.
McMurtry J agreed with Heilman that the appeal tribunal had effectively fettered its discretion by delegating its decision-making power to the medical department and medical consultant; the tribunal had failed to make its own determination and therefore made an error of jurisdiction. The case was remitted to another tribunal appointed under the statute for a decision in accordance with the law.
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