P.A. v. TD General Insurance Company, 2020 CanLII 35503

Citation: P.A. vs. TD General Insurance Company, 2020 ONLAT 19-001349/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

P.A.

Applicant

and

TD General Insurance Company

Respondent

REASONS FOR DECISION

PANEL:

Thérèse Reilly, Adjudicator

APPEARANCES:

For the Applicant:

Troy Lehman, Counsel

For the Respondent:

Claude Blouin, Counsel

Court Reporter

[L.L.]

HEARD:

By way of written submissions

OVERVIEW

1The applicant’s spouse and children were injured in a car accident on July 4, 2015. The applicant was not involved in the car accident but claims he suffers from psychological impairments including post-traumatic stress (PTSD), anxiety, depression and insomnia as a result of the accident. He was prescribed medical cannabis by medical doctors to treat the accident related impairments. The respondent paid for the medical cannabis for a period of time and then denied the claim for medical cannabis on the basis that the medication was not reasonable and necessary.

2The applicant filed an application to the Tribunal¹ for dispute resolution and has requested payment for medical cannabis to treat his injuries. He claims the medical cannabis is a prescription drug prescribed by a regulated health professional and, as it has treated and relieved symptoms from the injuries sustained from the accident, the expenses are reasonable and necessary.

ISSUES IN DISPUTE

3The issues in dispute are as follows:

i. Is the applicant entitled to the cost of expenses for $20,067.67² for medical cannabis recommended by Dr. Brun del Re and Dr. Griffioen in the OCF-6s dated as follows:

a) September 5, 2017 for $411.32; denial date not stated December 19, 2017 for $1,728.90; denied January 11, 2018

b) January 8, 2018 for $1,192.15; denied January 11, 2018

c) January 15, 2018 for $858.80; denied January 19, 2018

d) February 27, 2018 for $1,717.60; denied February 27, 2017

e) September 25, 2018 for $14,158.90; denied October 30, 2018³

ii. Is the applicant entitled to an award for unreasonably withheld or delayed payments pursuant to section 10 of Reg. 664, R.R.O. 1990?

iii. Is the applicant entitled to receive interest on any overdue payment of benefits?

RESULT

4I find the applicant is entitled to the amount of $20,067.67 for medical cannabis, and interest. The applicant is not entitled to an award.

The Law – Section 38 of the Schedule

5Section 38 (2) sets out the requirements for payment of prescription drugs without a treatment and assessment plan as follows:

38 (2) An insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) unless,

(c) the expense is reasonable and necessary as a result of the impairment sustained by the insured person for,

(i) drugs prescribed by a regulated health professional.

6The burden of proof rests with the applicant to demonstrate his entitlement to medical cannabis on the basis of reasonableness and necessity.

The Issues

7The applicant submits the medical cannabis is reasonable and necessary because it was prescribed by regulated health care professionals, Dr. Brun del Re and Dr. Griffioen who are both medical doctors. It was prescribed to address his psychological injuries from the accident and the treatment is working. By using the medical cannabis, he is feeling less irritable, has improved mood, and increased sleep.

8The sole issue in the appeal is whether the medical cannabis is reasonable and necessary to address the impairments resulting from the accident.

9To support his position, the applicant referred to several Tribunal decisions which have found that medical cannabis can be used to treat anxiety and depression.⁴

10The respondent denies the treatment is reasonable and necessary as it claims the cannabis is to treat pre-existing conditions, the applicant is a long-time user and the expenses are for recreational purposes and to fund his ongoing use.⁵ The respondent submits the applicant has not established that the medical cannabis in dispute is to treat his accident related injuries.

11I find overall the applicant has met the onus to prove that the accident caused psychological impairments and the prescribed medical cannabis to treat the psychological impairments is reasonable and necessary.

Medical Cannabis and Treatment of Psychological Issues

12The sole witness called at the in-person hearing was the applicant, who testified and stated in his affidavit that the medical cannabis is to treat psychological impairments from the accident including anxiety, depressed mood, sleeping difficulties, nightmares, insomnia, irritability and post traumatic stress. The applicant states, before the accident, he was employed, healthy and well-adjusted emotionally.⁶ He admits he hadn't used cannabis for many years before the accident but had used it for recreational purposes during his university years. He hasn’t used it since meeting his spouse. He lost his job in October 2016 and since the accident has taken on the burden of being the caregiver to his injured wife and kids.

13He consulted a number of medical doctors for the psychological issues after the accident including his family doctors, Dr. McKee and Dr. M. Van Walraven, and Dr. Brun del Re and Dr. Griffioen, both of Bodystream Medical Marijuana Services (Bodystream Medical) and Dr. Bolea-Alamanac, psychiatrist. He was diagnosed with PTSD by Dr. McKee, outlined in a Disability Certificate (OCF-3) dated April 4, 2017.⁷ In addition to PTSD, Dr. McKee diagnosed him with anxiety and depression. The notes of Dr. McKee also confirm that the applicant was dealing with post traumatic stress type issues before the accident.⁸ The notes of May 30, 2017 state the applicant agreed he would consult a psychologist specializing in PTSD.⁹ He testified Dr. McKee suggested he see a psychologist but he had to wait due to a long waiting list. The applicant states his family doctors were aware that he was prescribed medical cannabis and fully supported it.¹⁰

14In January 2018, Dr. Van Walraven became the applicant’s family doctor after Dr. McKee retired. The applicant states he discussed the cannabis treatment with Dr. Van Walraven. In her letter of March 28, 2018, Dr. Van Walraven confirmed that his former family doctor had diagnosed the applicant with PTSD. He was prescribed medication including medical marijuana that was used to treat his symptoms with some success.¹¹ Dr. Walraven confirmed her position again in her clinical notes dated February 24, 2020.¹²

15The applicant consulted with physicians at Bodystream Medical and, in January 2017, discussed his ongoing issues flowing from the accident including sleep issues, anxiety, PTSD and depression with Dr. Brun del Re. He also reported some physical pain at that time with plantar fasciitis.¹³ Dr. Brun del Re, in January 2017, prescribed medical cannabis to address his impairments. The applicant testified the benefits of using medical cannabis included better sleep, being able to better manage his anxiety, and his nightmares and night sweats ceased. In a letter dated May 2, 2017, Dr. Brun del Re confirmed that he "prescribed medical marijuana to the applicant for treatment of PTSD arising from the MVA."¹⁴

16In addition to treatment from Dr. Brun del Re, the applicant was treated by Dr. Griffioen. He prescribed medical marijuana on June 5, 2019 to treat the applicant’s PTSD, anxiety and stress. Dr. Griffioen states in his affidavit that in his "medical opinion that the treatment with medical marijuana is both appropriate and reasonable to treat the applicant’s PTSD, anxiety, and stress”.¹⁵ Further, in his medical opinion, the “PTSD, anxiety and stress had been and should continue to be effectively treated by medical marijuana".¹⁶ He indicates that the medication is an effective treatment of these conditions and can help with pain from plantar fasciitis. The applicant testified the plantar fasciitis resolved in early 2017. In his letter of August 29, 2019, Dr. Griffioen states the applicant suffers from PTSD due to the accident and the prescribed medical marijuana has become necessary to treat his nighttime and daytime symptoms.¹⁷

17Dr. Van Walraven stated in a note of February 20, 2019 that she has encouraged the applicant to limit use of the “CBD oil” until he has consulted with a psychiatrist. She also stated in her notes that he "was off medical pot - does still do recreational - insurance stopped paying." In the same note, Dr. Van Walraven indicated that she would refer him to a psychiatrist to clarify the diagnosis of PTSD.¹⁸

18Dr. Walraven confirmed in her clinical notes from February 24, 2020 that she was supportive of his use of cannabis to treat his symptoms and that “his most success in helping with his PTSD, anxiety and depression has been with Sertraline and possibly with the cannabis–THC:CBD at different ratios”.¹⁹ She states she is supportive of the applicant using cannabis in addition to his sertraline and regular counselling, which, on a review of his file, “has allowed him to function to care for his family”.

19The applicant was seen by a psychiatrist at CAMH (Centre for Addiction and Mental Health) on March 7, 2019. The applicant reported increased irritability anger, sleep problems, increased worry and high levels of anxiety. The respondent states that the doctor noted: "He reported some avoidance and some flashbacks but no other symptoms of PTSD".²⁰ He was diagnosed with major depression - moderate.²¹ The CAMH recommendations included trying another anti-depressant, and I agree with the respondent’s submissions that there is no suggestion from CAMH to treat the condition with medical cannabis. Although the quote referenced by the respondent states the applicant has “…no other symptoms of PTSD”, the report also noted other symptoms including increased irritability, anger, sleep problems, increased worry and high levels of anxiety. The applicant also saw Dr. Bolea-Alamanac in March 2019 who also diagnosed him with a major depressive disorder.²²

The OCF-6 Expenses and the Denials

20The first OCF-6 submitted to the respondent for reimbursement is dated May 5, 2017 and he provided a letter from Dr. Brun del Re dated May 2, 2017²³ confirming that he was being prescribed the medical cannabis to treat PTSD from the accident. The medical cannabis prescription was also provided. Six other OCF-6s between May 25, 2017 and July 17, 2017 were funded by the respondent. On July 31, 2017, the OCF-6 was denied on the basis that the limit under the Minor Injury Guideline (MIG) had been reached. This changed in September 12, 2017 when the respondent removed the applicant from MIG and extended the medical-rehabilitation limit from $3,500 to $50,000.²⁴ The respondent paid for other various medical cannabis expenses but, on January 11, 2028, the OCF-6s of December 19, 2017 and January 8, 2018 were denied on the basis of the absence of an OCF-18 treatment plan. I agree with the applicant that a treatment plan under section 38 of the Schedule is not required for payment of a prescription medication expense.

21The OCF-6s dated January 15, 2018 and February 27, 2018 and September 25, 2018 were denied by letters dated January 19, 2018 and February 27, 2018 and October 20, 2018 respectively on the basis the OCF-3 completed by Dr. McKee did not contain a diagnosis of PTSD and (except for the denial of October 20, 2018) had no recommendation for treatment of symptoms with cannabis. I agree with the applicant that the denial is questionable²⁵ as the OCF-3 did state the diagnosis was to treat PTSD, as did the letter of Dr. Brun del Re of May 2, 2017. The applicant states that due to the continued need for the prescribed treatment, the applicant continued to pay for the cannabis until September 2018, when he could no longer afford to pay for the treatment prescribed by his doctors.

RESPONDENT’S ARGUMENTS

22The respondent submits that the assessment documents completed by the applicant for Bodystream Medical dated November 15, 2016 confirm he sought treatment to overcome insomnia that he has had since in or about November 2013.²⁶ When initially assessed at Bodystream Medical on January 11, 2017, the presenting complaint/condition was noted as "insomnia" and "Other: plantar fasciitis". The respondent submits the medical condition for which the applicant was prescribed medical cannabis was plantar fasciitis/sleep issues including insomnia.

23Additionally, when he was seen at Bodystream Medical on March 22, 2017, the applicant stated in the assessment form that he felt pain in his low back, left shoulder and both feet. Under " What treatment or medications are you receiving for your pain?", the applicant responded "Cannabis has helped to alleviate the pain.”²⁷ In addition, the Bodystream Medical records for September 20, 2017 note that the applicant “has been using cannabis for over 20 years with no adverse effects and, for the first time, there is a mention of PTSD”.²⁸

24The respondent submits that between the time of the accident on July 4, 2015 and the applicant's first visit with Bodystream Medical on January 11, 2017, there is no medical evidence that the applicant sought any consultation or treatment from any medical or other health practitioner for any problems related to the accident involving his family members. There is also no psychiatric or psychological diagnosis of post-traumatic stress disorder until the applicant submitted the first expense in May 2017.²⁹ The respondent argues his issues started and stem from the loss of his job in October 2016.³⁰

DECISION

25The evidence indicates the insurer denied some of the OCF-6s in dispute based on incorrect belief that the OCF-3 completed by Dr. McKee failed to state the diagnosis of PSTD from the accident. Although some of the evidence from the applicant confirms he used marijuana during his university years for recreational purposes and Dr. Walraven’s brief note of February 20, 2019 suggesting he used it for recreation, I agree with the applicant that overall he began using medical cannabis after he consulted with the doctors at Bodystream Medical and was prescribed medical cannabis to deal with his ongoing psychological issues which arose from the accident.

26In totality, the medical evidence presented by the applicant and as set out above does not support the respondent’s position that he is using the medical cannabis for recreational purposes and seeking to have the respondent fund his ongoing use.³¹

27There is evidence the applicant had plantar fasciitis pain when he first started taking medical cannabis but, as he stated, that condition was already improving with physiotherapy and use of a splint. It resolved within a few months of his starting medical cannabis and was a temporary problem that was very minor in comparison to the psychological problems. As to insomnia existing pre-accident, there is evidence such as the family doctor note in November 2014 that the applicant had PTSD issues including insomnia prior to the accident. However, based on the letters and clinical notes from the family doctor and Dr. Brun del Re and Dr. Griffioen, discussed above, the applicant has established he suffers from PTSD and other psychological issues from the accident and continued use of the medical cannabis is reasonable and necessary for continued treatment.

28I agree with the respondent that the applicant did not see his family doctor for any accident related psychological issues until 2017 and did not see a psychologist or a psychiatrist for his PTSD symptoms until 2019. I agree there was a delay despite several suggestions made by his family doctor to seek counselling from a psychologist or psychiatrist. I accept the applicant’s position that there was a long waiting list. He did seek counselling at CAMH and Dr. Bolea-Alamanac in March 2019 who both confirmed an ongoing diagnosis of depression and the CAMH reported on the continuation of various psychological symptoms.

29I find the applicant is entitled to payment of the entire amount in dispute.

30Section 38 allows the applicant to seek repayment for prescription medication expenses without submitting a treatment and assessment plan. I find the three requirements have been met for payment under s. 38(2)(c)(i) in that the accident caused the impairment that necessitates the prescription medication, the prescription medication is reasonable and necessary and was prescribed by a regulated health professional.

31I accept that the motor vehicle accident caused a psychological impairment which necessitates the cannabis medication. There is enough evidence that the medical cannabis is reasonable and necessary to treat the applicant's psychological impairment documented by his family doctors and the treating doctors at Bodystream Medical. Dr. Van Walraven supports the use of cannabis to treat the ongoing psychological impairment which allowed the applicant to continue to function and care for his family. Her medical evidence supports the applicant’s position that the medical cannabis is effective is treating the applicant’s symptoms, improves his functionality and is reasonable and necessary.

32Although the medical cannabis was also recommended to treat some of the applicant’s pre-existing conditions, there is enough evidence to support a need for it because of his accident related injuries. The medical cannabis is effective and necessary to continue to treat the accident related injuries. He has proven that the treatment is reasonable and necessary. No evidence was presented that the cost is excessive considering the amount of benefits the applicant is receiving from it.

33In conclusion, despite ongoing prescriptions and use of medical cannabis for 3.5 years post accident, some of the applicant’s psychological symptoms continue to persist.

34I find that the applicant has proven his entitlement to payment of medical benefits for medical cannabis as the expenses are reasonable and necessary.

AWARD

35Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that an insurer has unreasonably withheld or delayed payments.

36Although I have found the claim to be reasonable and necessary, I do not find that the respondent unreasonably withheld or delayed payments. The threshold for an award is high for good reason; to ensure that an insured is not unjustly awarded because an insurer 'reasonably' denied a claim. This is not the case in the subject appeal, as such, I find an award is not appropriate.

CONCLUSION

37The applicant has met the onus that the accident caused psychological impairments and has proven his entitlement to medical cannabis. The claimed expenses are reasonable and necessary. The applicant is entitled to interest on the amounts owing. The claim for an award is dismissed.

Released: May 1, 2020

Thérèse Reilly

Adjudicator

Footnotes

1. 1Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
2. 2At the in-person hearing held on February 25, 2020, the parties filed as Exhibit 1, Summary of Denied Expenses, confirming the items in dispute.
3. 3The various invoices are for Cannabis Oils from February 2018 up to and including September 11, 2018.
4. 4For example, 17-001866 v. Aviva Insurance, 2017 CanLII 85690 (ON LAT), at para 17 and F.F. and Aviva Insurance Canada, 2019 CanLII 76837 (ON LAT) at para 7. The adjudicator found that insomnia and anxiety relief and/or reduction of these were reasonable and legitimate goals of treatment which enabled the applicant to engage in his daily activities without experiencing ongoing impairment.
5. 5Written submissions of the respondent, paragraphs 21 and 22.
6. 6Applicant’s Affidavit, November 20, 2019, Applicant’s Document Brief, Vol 2, Tab 9, Parag. 22 to 26.
7. 7Disability Certificate (OCF-3), Dr. McKee dated April 4, 2017, Applicant’s Document Brief, Vol 1, Tab 2, Page 2 and Clinical notes and records of Dr. McKee dated April 4, 2017 and May 30, 2017, Applicant's Document Brief, Vol 1, Tab 2, Page 2.
8. 8Clinical Notes and Records, Dr. McKee, Applicant's Document Brief, Vol. 1, Tab 2, page 1, November 18, 2014.
9. 9Clinical Notes and Records, Dr. McKee, Applicant's Document Brief, Vol. 1, Tab 2, page 2.
10. 10Applicant’s Affidavit, November 20, 2019, Applicant’s Document Brief, Vol 2, Tab 9, Parag. 32 and 33.
11. 11Letter of Dr. Van Walraven dated March 28, 2018, Applicant's Documents Brief, Volume 1, Tab 3.
12. 12Clinical Notes of Dr. Van Walraven, Exhibit 2, In Person Hearing, February 25, 2020.
13. 13Applicant Document Brief, Volume 2, Affidavit of the applicant, Tab 9, Parag 35 to 36.
14. 14Letter of Dr. Brun del Re, Bodystream Medical Marijuana Services, dated May 2, 2017, Applicant's Document Brief, Volume 1, Tab 1, page 129.
15. 15Affidavit of Dr. Timothy Griffioen, Applicant's Documents Brief, Volume 2, Tab 8, para 10.
16. 16Affidavit of Dr. Timothy Griffioen, Applicant's Documents Brief, Volume 2, Tab 8, para 6.
17. 17Clinical Notes of Bodystream Medical, Letter of Dr. Griffioen, dated August 29, 2019 Applicant Document Brief, Vol 1, Tab 1, page 133.
18. 18Clinical Notes of Dr. Van Walraven, Applicant's Document Brief, Vol. 1, Tab 3, Pg. 17-19.
19. 19Exhibit 2, clinical note of Dr. Van Walraven dated February 24, 2020.
20. 20CAMH Consultation Report, March 31, 2019, Applicant’s Document Brief, Volume 1, Tab 3, pages 7 to 10.
21. 21CAMH Consultation Report, March 31, 2019, Applicant’s Document Brief, Volume 1, Tab 3, page 10.
22. 22Applicant’s Reply Submissions, dated January 20, 2020, paragraph 12.
23. 23Applicant’s Written Submissions, paragraph 22, and Applicant’s Document Brief, Volume 1, Tab 7, pages 1 – 20.
24. 24Applicant’s Document Brief, Letter from TD Insurance dated September 12, 2017, Volume 1, Tab 7, page 56.
25. 25Applicant’s Written Submissions, paragraph 25 to 28, 30 to 33.
26. 26Bodystream Assessment, November 15, 2016, Respondent’s Document Brief, Tab 1, Page 2.
27. 27Written submissions of the respondent, paragraphs 12 and 13. Applicant's Document Brief, Tab 1, Pages 1-3 and Bodystream Records, Applicant's Document Brief, Tab 1, Pages 4-8.
28. 28Applicant’s Document Brief Volume 1, Tab 1, Pages 12-16, Written submissions of the respondent, parag. 12 and 13.
29. 29Written submissions of the respondent, paragraph 14.
30. 30Written submissions of the respondent, paragraph 16.
31. 31Written submissions of the respondent, paragraph 22.```