FSCO arbitrator awards medical marijuana to accident claimant

A decision of a Financial Services Commission of Ontario arbitrator to allow medical marijuana as a medical benefit may open the floodgates to accident-benefits claimants seeking payment for the drug.

In T.N. v. Personal Insurance Co. of Canada, arbitrator Eban Bayefsky awarded $567.60 per month for the purchase of medical marijuana. The applicant put in a claim for marijuana, testifying at the arbitration that it was the only substance that alleviated her pain, anxiety, insomnia, and poor appetite without significant side-effects.

If upheld, the arbitrator’s decision has the potential to expose accident-benefits insurers to an avalanche of claims to pay for medical marijuana.

Kevin Doan, who represented the applicant, says the insurance industry may have concerns that the decision allows for the payment of medical marijuana as part of the accident-benefits system.  However, he thinks any responsible counsel or applicant should be cautious about abusing marijuana and should first consider cheaper medication before using the drug.

Andrea Lim, whose firm Dutton Brock LLP represents Personal Insurance, says there are concerns the decision opens the door to medical marijuana being part of accident benefits. Lead counsel Philippa Samworth was out of the office and not available for comment.

Doan notes in the tort context, there’s no requirement that medical marijuana be found not to be experimental as there is in the accident-benefits regime; rather, the courts look at what’s reasonably necessary to put plaintiffs back in the position they would have been in before the accident. However, he adds there hasn’t been a flood of cases so far.

Doan says the applicant got a Health Canada card allowing her to possess marijuana in early 2010. He notes he’s glad his client found something that was effective for her and the arbitrator decided she should have the support of funding for medical marijuana.

Despite the finding, Doan thinks the arbitrator wants to discourage people from abusing marijuana.

“In my view, marijuana should be considered as one of the last options,” says Doan. He notes that in this case, the applicant tried traditional medicine for over five years and was still in pain with continuing appetite problems and sleep difficulties. He says that little by little, the applicant found marijuana was effective.

The applicant’s past use of drugs before her car accident was also an issue at the hearing.

Erin Durant, an associate at Dooley Barristers Professional Corp., says the decision suggests even where applicants used marijuana before their accidents, if there’s medical evidence to support the claim, the insurer may have to pay for it.

“I think that medical marijuana is difficult to get prescribed, so you’d definitely need solid medical evidence,” she says.

Doan indicates the arbitrator found the applicant’s past drug use wasn’t at a frequency or level near what it was after the accident. He says the applicant was injured at 21 and her prior use occurred when she was a teenager with some occasional drug use before the accident. He says this issue came up during the hearing and it wasn’t a factor for the arbitrator.

Doan says insurers can always use the pre-existing history of an applicant and think about how it will come into play after the accident. He doesn’t believe the decision bars insurers from using pre-accident history in determining whether to provide benefits.

The arbitrator’s finding on attendant-care benefits was also noteworthy. The arbitrator awarded $5,056.80 per month for attendant-care benefits from the date of the car accident in October 2000 and ongoing. That would add up to more than $728,000, less any benefits paid to date.

Doan notes this is probably one of the highest awards by an arbitrator. “I’ve been practicing at the commission the last 16 years and I don’t recall any decision higher,” he says. He adds that after accounting for interest as well, this will likely be the largest award granted.

Although the award was based on the applicant getting 24-hour-per-day supervision even though she was on her own during the days and evenings, Doan says the person monitoring doesn’t have to be “shoulder-to-shoulder” with her but there does have to be someone constantly available noting the applicant’s whereabouts and able to assist on short notice.

Doan notes the arbitrator’s award doesn’t actually pay for 24-hour care because, under the accident-benefits system, it assesses payment based on the minimum wage. He says the “amount under the system is far from adequate to purchase 24-hour care on the market.”

Lim says her client’s position is the arbitrator was wrong in the interpretation of whether the applicant can claim benefits she hasn’t incurred. She notes that until Dec. 18, 2006, the applicant didn’t submit a Form 1, which generally contains a breakdown of tasks a person needs care for. She says her client also argues the benefits shouldn’t be retroactive as there’s no evidence the applicant had incurred any attendant care before December 2006.

Doan says the law now is that if applicants can prove they have attendant-care needs, there’s a strong argument the insurer would have to pay for them even though actual money hasn’t changed hands. Otherwise, it wouldn’t be fair to the injured person who would have to pay for the services up front.

Personal Insurance is appealing the arbitrator’s decision on several issues, including the award for attendant-care benefits and medical benefits to purchase medical marijuana.

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