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Articles and Publications

October 2012

FSCO orders insurer to fund medicinal marijuana purchase

Michael Kennedy
Michael Kennedy
Partner

 

By Michael Kennedy, Partner
Published in McCague Borlack's Accident Benefits Newsletter

 

A recent FSCO decision has found marijuana to be payable by accident benefits insurers in certain circumstances. In T.N. and Personal Insurance Company of Canada (FSCO A06–000399), a catastrophically impaired claimant sought, among other benefits, entitlement to the purchase of medical marijuana. While the claimant had used marijuana in the past, her use (which was approved by Health Canada) had increased since the accident. The insurer unsuccessfully argued that the claimant's marijuana treatment was experimental and therefore not payable.

After listening to expert evidence from both the claimant and the insurer, Arbitrator Bayefsky held that “the fact that the use of marijuana for these symptoms remains controversial does not, in itself, relieve the insurer of its obligation to cover the costs of such treatment, provided that the applicant can establish that these are reasonably required as a result of the accident.” Arbitrator Bayefsky also held that simply because a medication is not conventionally used or is associated with risks does not necessarily make it experimental.

Arbitrator Bayefsky decided that the claimant's continued use of medical marijuana was reasonable and necessary, as he accepted her evidence that marijuana as opposed to other medications was helpful to her. As such, the drug, at least for this particular claimant, was not experimental and was therefore payable by her insurer.

Insurers should not interpret this decision as requiring them to fund medicinal marijuana in all cases. Claimants must still prove that they are suffering from accident-related symptoms for which it is established that legal marijuana use will treat. The decision suggests that marijuana use will only be reasonable and necessary in fact-specific instances, such as possibly in cases where a catastrophically injured claimant is already using medicinal marijuana because other more conventional treatments have failed.

Read the full FSCO report A06-000399.


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