Law Times

Law timeS • September 10, 2012 BRIEF: PERSONAL INJURY LAW FSCO arbitrator awards medical marijuana to accident claimant A Insurance benefits BY SIOBHAN McCLELLAND For Law Times juana as a medical benefit may open the floodgates to accident- benefits claimants seeking pay- ment for the drug. In T.N. v. Personal Insurance decision of a Financial Services Commission of Ontario arbitrator to allow medical mari- Dooley Barristers Professional Corp., says the decision suggests even where applicants used mari- juana before their accidents, if there' Erin Durant, an associate at port the claim, the insurer may have to pay for it. "I think that medical marijua- s medical evidence to sup- na is difficult to get prescribed, so you' evidence," she says. Co. of Canada, arbitrator Eban Bayefsky awarded $567.60 per month for the purchase of medical marijuana. The appli- cant put in a claim for marijua- na, 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' sion has the potential to expose accident-benefits insurers to an avalanche of claims to pay for medical marijuana. Kevin Doan, who represented s deci- ton Brock LLP represents Per- sonal 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 medi- the applicant, says the insurance industry may have concerns that the decision allows for the pay- ment of medical marijuana as part of the accident-benefits system. However, he thinks any responsi- ble counsel or applicant should be cautious about abusing marijuana and should first consider cheaper medication before using the drug. Andrea Lim, whose firm Dut- found the applicant's past drug d definitely need solid medical Doan indicates the arbitrator use wasn't at a frequency or level near what it was aſter 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 aſter the acci- dent. He doesn't believe the deci- sion bars insurers from using pre- accident history in determining whether to provide benefits. The arbitrator' attendant-care benefits was also noteworthy. The arbitrator award- ed $5,056.80 per month for atten- dant-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 s finding on one of the highest awards by an ar- bitrator. "I've been practicing at the commission the last 16 years and I don't recall any decision higher, says. He adds that aſter accounting for interest as well, this will likely be the largest award granted. Although the award was based on the applicant getting " he 24-hour-per-day supervision even though she was on her own during the days and evenings, Doan says the person monitor- ing doesn't have to be "shoulder- to-shoulder" with her but there does have to be someone con- stantly available noting the ap- plicant' to assist on short notice. Doan notes the arbitrator' 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 whereabouts and able s is the arbitrator was wrong in the interpretation of whether the applicant can claim ben- efits she hasn't incurred. She notes that until Dec. 18, 2006, s position the applicant didn't submit a Form 1, which generally con- tains a breakdown of person needs care for. She says her client also argues the ben- efits shouldn't be retroactive as there' applicants can prove they have at- tendant-care needs, there' argument the insurer would have to pay for them even though ac- tual 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 ap- pealing the arbitrator's decision s a strong on several issues, including the award for attendant-care ben- efits and medical benefits to pur- chase medical marijuana. LT cant had incurred any attendant care before December 2006. Doan says the law now is that if s no evidence the appli- tasks a PAGE 15 cal marijuana be found not to be experimental as there is in the ac- cident-benefits regime; rather, the courts look at what' 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 s reasonably Health Canada card allowing her to possess marijuana in early 2010. He notes he' something that was effective for her and the arbitrator decided she should have the support of fund- ing for medical marijuana. Despite the finding, Doan s glad his client found thinks the arbitrator wants to discourage people from abusing marijuana. "In my view, marijuana should What do your clients need? The means to move on. Guaranteed. Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. 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 mari- juana was effective. The applicant' drugs before her car accident was also an issue at the hearing. s past use of Baxter_LT_Jan9_12.indd 1 » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years » No fee to you or your clients ™ FREE BAXTER APP! FREE BAXTER APP! Need more information? 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