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