WSIAT: Injured Worker Entitled to Reimbursement for Medical Cannabis
August 10, 2023
Koskie Minsky acted in a recent case before the Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”), where David Ragni, a lawyer in our labour department, successfully argued that an injured worker was entitled to reimbursement for medical cannabis purchased from Compassion Clubs without receipts.
In 2007, the injured worker received authorization from Health Canada to possess medical cannabis. The injured worker had been prescribed cannabis following a workplace injury.
At the time, cannabis was still illegal in Canada except that it could be purchased for medical purposes from Health Canada-licensed suppliers. The injured worker could not afford these suppliers’ prices. Instead, he purchased his medical cannabis from Compassion Clubs which sold cannabis at more affordable prices. Unfortunately, the Compassion Clubs could not issue receipts because it was still illegal to sell cannabis in Canada. The injured worker resorted to creating his own records of his medical cannabis purchases due to the unavailability of receipts.
In 2018, the WSIAT determined that the injured worker was entitled to reimbursement for his medical cannabis expenses. In 2020, the WSIAT further determined that the injured worker was entitled to reimbursement for these expenses from the date he had first obtained Health Canada authorization to possess medical cannabis. These decisions were remitted to the Workplace Safety and Insurance Board (the “WSIB”) for implementation. However, the WSIB ultimately denied reimbursement for the Compassion Clubs purchases on the grounds that the injured worker had not provided receipts substantiating the purchases. The WSIB’s decision in this regard was appealed to the WSIAT.
Decision of the Workplace Safety and Insurance Appeals Tribunal
We argued that by refusing to reimburse the injured worker for the medical cannabis he had purchased from Compassion Clubs, the WSIB had effectively frustrated the WSIAT’s decision to reimburse the injured worker for his medical cannabis expenses. We relied on previous decisions where the WSIAT granted entitlement for reimbursement for medical cannabis purchased from suppliers that were not licensed by Health Canada. In one of these decisions, an injured worker who had purchased medical cannabis from Compassion Clubs had submitted documentation similar to the records created by the injured worker in this appeal. In that case, such documentation had been accepted in lieu of receipts.
The WSIAT adopted the reasoning in these earlier decisions and determined that giving effect to the WSIAT’s 2018 and 2020 decisions required reimbursing the injured worker for his medical cannabis purchases from Compassion Clubs. The WSIAT accepted as accurate the records made by the injured worker and determined that the injured worker should be reimbursed for the purchases recorded in his records.
Where a worker is entitled to reimbursement for healthcare expenses incurred because of a workplace injury, it may not always be appropriate for the WSIB to require the worker to prove their expenses using receipts, particularly where receipts are unavailable through no fault of the worker. As this decision illustrates, it may be practically impossible in some cases for injured workers to substantiate their healthcare expenses using receipts. In such cases, the WSIB may need to be more flexible in terms of its documentation requirements. For instance, if a worker has no way of providing the WSIB with receipts outlining their healthcare expenses, then the WSIB may need to accept records of purchases made by the worker instead. This more flexible approach to documentation will help ensure that injured workers actually receive the reimbursements they are found to be entitled to under the Workplace Safety and Insurance Act, 1997.
WSIAT Decision No. 971/23 (July 26, 2023)
Authored by: Shae MacPherson, Law Student