Everyone here at Goldfinger Injury Lawyers hopes that you had a safe holiday season, along with a Happy New Year. We also hope you’re doing your best to keep warm, as most parts of Ontario have experienced a deep winter freeze over the past month or so.
We kick off the first post of 2018 in the Toronto Injury Lawyer Blog with an examination of medical marijuana for your personal injury or long term disability case.
We here at Goldfinger Injury Lawyers are going out on a limb and declaring 2018 the year of pot/marijuana. As we get closer to July 1, 2018, we will hear more and more about the legalization of recreational marijuana. It may, or may not be legalized by that time. Justin Trudeau has given mixed signals on when recreational marijuana will be legalized; and the provinces are still working out how it will be dispensed. Ontario is leaning towards an LCBO style model. What model will work best has yet to be seen.
There is a difference between medicinal marijuana, and recreational marijuana.
Ontario tribunals have long recognized that marijuana for pain relief and other medicinal purposes is legitimate. In fact, tribunals have ordered that insurers pay accident victims for their medicinal marijuana expenses.
Here are three cases where Arbitrators at the Financial Services Commission of Ontario (FSCO) have ordered that large insurance companies pay for an injured accident victim’s marijuana expenses out of their accident benefit claim. We are reviewing these cases to give our Toronto Injury Lawyer Blog readership some insight on what circumstances Courts will order that medical marijuana expenses be paid by insurance companies, along with some figures as to how much was awarded. Note, these cases arose from car accidents which took place in 2007, 2009 and 2000! Medical marijuana in Courts is not a new thing.
John Biro, was injured in a motor vehicle accident on March 11, 2007 when he was rear-ended. Mr. Biro has a pre-existing medical condition that complicated Unica’s consideration of his accident benefits claims. Mr. Biro suffered from ankylosing spondylitis or psoriatic spondyloarthropathy. Mr. Biro was diagnosed with this condition in 1998. The main visible symptoms of the condition is limited mobility, kyphosis, a bent-forward posture as a result of a fused lower back and neck with marked restrictions in neck movement, and pain.
Mr. Biro testified that he purchased street marijuana for recreational use before the accident, and from the accident date to 2010 to treat the pain after his accident. He acquired a prescription in early 2011, then, from Health Canada, an authorization to possess in 2012 and a personal use production licence in 2013.
The FSCO Arbitrator found that 3g per day of marijuana had been prescribed and the doctors indicated it was helpful to Mr. Biro to control the pain associated with the injuries he suffered in the accident. FCSO found that Mr. Biro was entitled to $30 per day in a medical benefit for medical marijuana but only from February 11, 2011 and ongoing.
The Applicant, Ms. Tinna Doyon, was injured in a motor vehicle accident on February 9, 2009 and sought, among other things, that her insurer Allstate pay payment for either marijuana growing equipment in the amount of $3,443.65 or medical marijuana for the period of June 14, 2012 to November 30, 2014 in the amount of $12,600.00, or both.
The Applicant obtained a valid Authorization to Possess and a valid Personal-Use Production Licence, both issued on August 1, 2013 from Health Canada. The Insurer agreed to pay for medical marijuana and/or related growing equipment that complied with the terms of Ms. Doyon’s license and the law.
The FSCO Arbitrator ordered that The Personal pay for Ms. Doyon’s marijuana expenses between between June 14, 2012 and November 30, 2014. If the Applicant used 4 grams of marijuana for each of those days at the Health Canada $5.00 per gram, that would be a total of $17,980.00. As the Applicant only claimed $12,600.00, the Arbitrator found that the amount claimed was reasonable.
The Applicant was catastrophically injured in a motor vehicle accident on October 29, 2000, when she was 21 years old. The Applicant claimed, among other benefits, $1,200 per month for the purchase of marijuana, from December 14, 2005, to alleviate the pain, anxiety, insomnia and poor appetite she had experienced as a result of her car accident.
In support of this claim, the Applicant submitted treatment plans from Dr. M. Mamelak, a neuropsychiatrist, dated March 27, 2007 and December 21, 2009, for the purchase of indica marijuana (a cannabis derivative) from the Toronto Compassion Centre (a clinic authorized by the federal government to sell marijuana for medicinal purposes). With Dr. Mamelak’s assistance, the Applicant’s application to the MarihuanaMedical Access Division of Health Canada for the medical use of marijuana was approved on January 27 and 28, 2010.
The Applicant testified that, as a result of the accident, she had used prescribed opiates (such as morphine and codeine), anti-depressants, tranquilizers and hypnotic medications, but that the only substance that alleviated her pain, anxiety, insomnia and poor appetite, without significant side-effects, was marijuana. Dr. Mamelak testified that the Applicant suffered from “frontal disinhibition syndrome.” Dr. Mamelak stated that opioids, such as Tylenol 3, are inadequate for lessening pain, that he “would like to use marijuana more” for addressing his patients’ pain, and that the Applicant’s use of alcohol to reduce pain would simply aggravate the syndrome from which she suffers. In a March 1, 2010 report, in which he summarizes some of the studies that have been done on the therapeutic use of marijuana, Dr. Mamelak states that “[a]fter reviewing this literature, and given how commonly medical cannabis and its components and derivatives are being used today, not to mention its extraordinary use for thousands of years to control pain, it is difficult to understand why the use of marijuana for medicinal practice is still considered experimental.” Dr. Mamelak further stated that “everyone who works with patients in chronic pain following motor vehicle accidents recognizes how…inadequate the current treatments are…[and that the Applicant’s] poor pain control despite the use of opiates and other conventional methods is a case in point.”
Here the Arbitrator was satisfied that the Applicant’s use of marijuana arose as a result of the accident and that, based in part on Health Canada’s approval of her application, it was a good or service of a medical nature. The Applicant was awarded $567.60 per month, a figure which was based on purchasing marijuana through the regulated system of the Toronto Compassion Centre.