Released Date: 07/24/2020
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:
K.P.
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce
APPEARANCES:
For the Applicant:
Maria Makarova
For the Respondent:
Jean-Claude Rioux
Heard by way of written submissions
OVERVIEW
1K.P. was injured in an accident on July 20, 2017 and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). As a result of his injuries—described as chronic neck and back pain as well as sleep issues—he sought payment for medical cannabis to treat his accident-related impairments. Aviva initially denied the treatment plan on the basis that K.P. was in the Minor Injury Guideline (“MIG”), but it later removed him from the MIG. After conducting a s. 44 examination, Aviva determined that the treatment plan for medical cannabis was not reasonable and necessary to treat chronic pain. K.P. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,458.88 for medical cannabis treatment recommended by Med Centra Inc. in a treatment plan (OCF-18) submitted on November 9, 2018, and denied on January 16, 2019?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
result
3I find K.P. is entitled to the cost of the treatment plan for medical cannabis as it is reasonable and necessary. Interest applies pursuant to s. 51.
ANALYSIS
4Section 15(1) of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident. K.P. bears the onus to prove that the specific benefits he claims are reasonable and necessary for his accident-related impairments. I find K.P. has satisfied his burden on a balance of probabilities.
5K.P.’s submissions for the reasonableness and necessity of the medical cannabis (and associated documentation) focus on addressing his pain and cite Dr. Zahavi’s recommendation in the chronic pain report that he try medical cannabis to relieve his pain and assist with his sleep issues. He submits that Aviva’s s. 44 assessor, Dr. Khaled, applied the wrong test in determining whether the treatment plan was needed and did not consider his sleep disorder or chronic pain syndrome. Finally, he relies on the Canadian government’s “Information for Healthcare Professionals” literature on Cannabis to support his argument that medical cannabis is reasonable and necessary to treat pain and sleep disorders.
6In response, Aviva submits that the cannabis treatment plan is not reasonable and necessary because K.P. smoked marijuana daily “for years” prior to the accident and continued to smoke marijuana after. Aviva directs the Tribunal to the s. 44 report of Dr. Khaled who determined that the benefit was not reasonable and necessary for K.P.’s accident-related impairments. Aviva submits that it is unreasonable that K.P. is now asking his insurer to pay for the exact same amount of marijuana he has smoked previously.
7In the family physician notes of Dr. Matheis, it is noted that K.P. started smoking marijuana more often because of his back and neck pain post-accident and Dr. Matheis notes that his pain is chronic in nature. While a specific recommendation is not made, Dr. Matheis also does not advise against cannabis use. The evidence shows that K.P. also tried marijuana oils to deal with his pain, in addition to prescription opioids. In the chronic pain report of Dr. Zahavi, K.P. reports smoking “1-2 joints per day” because it helps him to relax and assists with his pain and sleep. Dr. Zahavi’s fourth recommendation in his report is that the “use of a cannabinoid for neuropathic pain could be considered” because K.P. described getting a benefit from the use of marijuana. Dr. Zahavi “suggests considering oral cannabinoids or medical THC given the symptomatic use described.”
8On this recommendation, K.P. was assessed by Dr. Cooper at [the Clinic] The clinical notes indicate K.P. was already using two grams of cannabis per day to help him relax and alleviate pain. Dr. Cooper recommended K.P. use one gram of cannabis per day at 10% THC for three months and then re-assess. The OCF-18 in the amount of $2,458.88 consists of $200 for an assessment, $600 for three prescriptions, $200 for documentation and $1,176 for 84 grams of medical cannabis (at the rate of $14 per gram), plus HST. Other than arguing that the amount of marijuana recommended is similar to the amount allegedly consumed by K.P. previously, Aviva does not address the proposed costs.
9It is well-settled that pain relief is a legitimate goal for treatment, and this is the primary goal of the OCF-18 in dispute. I accept and find it concerning that K.P. continues to have pain post-accident and, in its submissions, Aviva does not refute that he does, despite its assessors finding that there is nothing wrong with K.P. from a musculoskeletal perspective. While I am alive to Dr. Khaled’s s. 44 report that states cannabis is not appropriate to treat chronic pain, on the facts and evidence, I prefer the recommendations of the chronic pain specialist, Dr. Zahavi, and the cannabis clinic physician, Dr. Cooper, who both believe that it is appropriate. The treatment goals of reducing pain are reasonable, the goals are likely to be achieved given K.P.’s consistent reports of pain and the cost of the treatment is reasonable when compared to other modalities. Accordingly, I find K.P. is entitled to payment for the treatment plan as it is reasonable and necessary. As the benefit is overdue, interest applies pursuant to s. 51.
CONCLUSION
10K.P. is entitled to payment for the treatment plan for medical cannabis as it is reasonable and necessary. Interest applies under s. 51.
Released: July 24, 2020
Jesse A. Boyce
Adjudicator