Cheech And Chong Get Into A Car Accident

In the recent LAT case of F.F. and Aviva Insurance Canada,¹ the Tribunal was faced with the question of whether a treatment plan for medical marijuana was reasonable or necessary to treat a claimant's anxiety and depression.

Facts

The insurer denied the treatment plan on the basis of a psychiatric expert report. The psychiatrist did not recommend cannabis as a form of treatment for the claimant's psychological impairments. He highlighted the fact that there was limited clinical research to support the use of marijuana in treatment of anxiety symptoms.

Despite referencing the psychiatrist's view of the clinical research, the Tribunal did not delve into what this research actually says. It is unclear whether any medical literature was put before the hearing Adjudicator.

The claimant relied predominantly on the opinion of his family doctor for his evidence. The family doctor's records confirmed that the claimant had reported little relief from traditional psychiatric medication and psychotherapy. However, he had shown a marked improvement in both his psychological and physical well-being with the use of medical marijuana. He had also noticed an improvement in his sleep quality while using the drug.

In light of these results, the claimant's family doctor was supportive of medical marijuana as a viable treatment option. This opinion was corroborated by a letter from a treating nurse who had also noticed the claimant's improvements when he began to use marijuana.

Decision

The Tribunal preferred the claimant's evidence and ordered the treatment plan payable in its entirety. The Decision highlighted the fact that the insurer's expert psychiatric report failed to consider relevant details about the claimant's treatment course; for instance, that the claimant had already tried traditional psychiatric medication and psychotherapy with little to no improvement before submitting his treatment plan for medical marijuana.

Interestingly, the Decision also ordered the insurer to fund a related treatment plan for a medical marijuana assessment. The Tribunal held that such an assessment would be reasonable "to determine what would be an appropriate marijuana product" for the claimant.

Questions Raised

The Decision was undoubtedly a resounding win for the involved claimant. However, the Tribunal's underlying reasoning raises the question of whether a claimant who turns straight to medical marijuana, without first attempting more traditional pharmacological interventions, would have the same level of success.

On a separate note, if the Decision's findings with respect to the marijuana assessment are left to stand, this seems to open the door for cannabis clinics to submit similar assessment costs for nearly every claimant with a medical marijuana prescription. Will a cottage industry of quasi-medical "personalized cannabis evaluations" spring up? Time will tell.

Lessons Learned

One clear takeaway from the Decision is that a blanket reliance on (a lack of) medical literature will not suffice as a primary reason to deny a medical marijuana treatment plan. The Decision implicitly follows the standard set by prior SABS case law that there is no requirement for a claimant to prove to a medical certainty that a treatment will be therapeutic.²

In a broader sense, the Decision presents another example of the ever-increasing role that the cannabis industry is beginning to play within personal injury litigation. In years past, both FSCO and the LAT grappled with the idea of marijuana as a treatment modality by contrasting the illegality of recreational cannabis with its purely clinical uses.³ This distinction has since been blurred through federal legalization of the drug for recreational use. Both first and third party insurers can expect to see an increase in claims factoring medical marijuana into treatment and future care costs as a result.

1. 18-002994/AABS.
2. Pacquette and Certas Direct Insurance Company, FSCO A05-000934.
3. See: Biro v. Unica Insurance Inc., FSCO A109-001753; M.J. and Pembridge Insurance Company, 16-000583/AABS.

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