FSCO awards medical marijuana costs in catastrophic injury case

A Financial Services Commission of Ontario arbitrator recently found in favour of a claimant seeking payment for medical marijuana from her insurer, more than a decade after the original auto collision that caused her injuries.

A FSCO arbitrator awarded $567.60 per month for medical marijuana costs, beginning March 27, 2007.

The decision was made in late July and concerns a woman, T.N, and her insurer, Personal Insurance Co. of Canada. The woman was in an auto collision in late 2000, resulting in catastrophic injury, including major head injury and some nerve damage. 

While she was awarded some accident benefits, she was denied others and after failed attempts at mediation with Personal Insurance, applied to FSCO for arbitration.

T.N. argued that after trying other medications for pain, anxiety and other symptoms resulting from her accident injury, marijuana was the only effective relief. Her application to Health Canada for medical marijuana use was approved in January 2010.

The major factor in the decision was whether the use of medical marijuana was experimental, which the arbitrator said Personal Insurance had not adequately shown was the case in T.N.’s situation.

“This is a frustrating comment since it suggests that insurers must prove that an experimental treatment is not effective, an almost impossible task. In the end, self-report won the day: the claimant claimed relief and the prescribing neuropsychologist agreed,” Talaal Bond, a Miller Thompson LLP partner wrote in a Sept. 19 blog on the firm’s website.

Another factor was T.N.’s drug use before the accident. While the arbitrator acknowledged that T.N. did use drugs before the 2000 collision, he wrote in his decision that it did in fact increase following her injury, and it was for pain relief.

As part of the same arbitration, FSCO awarded T.N. attendant care benefits from October 2000 on, at the rate of $5,056.80 per month, along with housekeeping services and nutritional counselling services.