January 26, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
M. J. v Pembridge Insurance Company – IRBs; SABs; IE recommends medical marijuana for pain relief but insured cannot produce supporting material from own doctor and benefit denied
M. J. v Pembridge Insurance Company
Date of Decision: January 9, 2017
Heard Before: Adjudicators: D. Gregory Flude, Vice Chair and Eleanor White, Vice Chair
REASONS FOR DECISION AND ORDER
M.J. was injured in a car accident on January 28, 2015. He applied to Pembridge for IRBs and medical benefits pursuant to the Schedule, however, Pembridge denied of the benefits he sought and he has now applied to the LAT.
Pembridge does not deny that M.J. would qualify for an IRB, but they take the position that M.J.’s income following the accident for the balance of 2015 was greater than before the accident and therefore he has no loss. With respect to 2016, Pembridge takes the position that it has continually asked M.J. for financial disclosure. M.J. has failed to provide the necessary documents and Pembridge’s position is that it has nothing upon which it can calculate M.J.’s entitlement.
Regarding the payment of the medical benefits, Pembridge points out that M.J. is seeking repayment for purchasing medical marijuana. However, for M.J. to have legal access to medical marijuana he needs a “medical document” as that term is defined in legislation which he has not provided. To pay for medical marijuana in the absence of a medical document would, in Pembridge’s submission, make it a party to trafficking in a controlled substance.
The Arbitrators noted that entitlement to IRBs are governed by the Schedule which clearly defines the formula for calculating their amount. Pembridge applied the formula correctly with the information they were provided. Based on the evidence and law the Arbitrators found in favour of Pembridge on all of the issues. The documentation it sought to assist M.J. in applying for an IRB in 2016 was neither extensive nor onerous to amass. The source of the information was from M.J.’s employer. He is a director of the company that employs him and has access to the information. It was open to him to have the company’s accountant forward the relevant documentation to Pembridge. M.J. declined to do so, even in the face of an order of the Tribunal.
The Arbitrators then reviewed the claim for medical marijuana and determined that although M.J.’s evidence was that three doctors have suggested he use medical marijuana to control his pain, none has noted it in the clinical notes and records. One of the facilities he visited specializes in the use of medical marijuana. M.J. insists that, through this clinic, he has been prescribed 2 grams per day of medical marijuana products. He uses a licence number to purchase the products on line, but does not have a document showing a right to use these products.
Pembridge relies on the regulatory scheme governing the prescribing of medical marijuana as set forth in the Controlled Drugs and Substances Act which prohibits possession of a controlled drug except as permitted by the regulations.
Pembridge submits that, in the absence of a medical document, M.J. is not entitled to possess and use marijuana for medical purposes. Despite repeated requests, M.J. has not produced his medical document. In Pembridge’s view, it cannot fund M.J.’s use medical marijuana until he produces the correct authorization. The Arbitrators accept that submission notwithstanding the fact that Pembridge’s own independent medical examiner thinks that marijuana may be useful in controlling M.J.’s pain.
Having heard all of the evidence and the submissions of the parties, the Arbitrators dismiss M.J.’s claims for an IRB and for funding of medical marijuana purchases.