October 31, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Doyon and Allstate
Decision Date: September 25, 2017
Heard Before: Adjudicator Jeffrey Rogers
PURCHASE OF MEDICAL MARIJUANA: Paying for the marijuana and the growing equipment is a duplication; either the drug is funded or the equipment to grow it.
- Ms. Doyon’s appeal is dismissed.
- Allstate’s appeal regarding Ms. Doyon’s entitlement to ongoing payments for the purchase of marijuana is withdrawn.
- Allstate’s appeal is otherwise dismissed.
REASONS FOR DECISION
Both parties appeal the Arbitrator’s order of August 31, 2016. Ms. Doyon submits that the Arbitrator failed to provide adequate reasons for determining the amount he awarded, and disputes the amound. She also submits that the Arbitrator exceeded his jurisdiction by addressing an issue that was not before him when he determined the amount of her entitlement for the purchase of medical marijuana and growing equipment.
Upon review of the evidence and the facts Adjudicator Roberts found that the Arbitrator denied payment for the purchase of marijuana growing equipment upon grounds that the parties did not believe were in dispute. However, the Arbitrator’s order stands because Ms. Doyon accedes to an expansion of the dispute in accepting the Arbitrator’s award for the purchase of the drug. I find no other errors by the Arbitrator. The appeals are therefore dismissed.
Ms. Doyon was injured in a car accident February 9, 2009 and applied for arbitration after mediation failed. The issues in the hearing included entitlement to monthly attendant care benefits (ACBs), payment for medical marijuana and growing equipment, and interest. The evidence before the Arbitrator was presented by way of an Agreed Statement of Facts, medical reports and other documents. There was also oral testimony from Ms. Doyon plus doctors and occupational therapists on both sides.
Ms. Doyon did not apply for ACBs until October 2014. Allstate had her assessed and began paying her ACBs at the rate of $864 per month, as its occupational therapist recommended. The payments started in November 2014. The dispute before the Arbitrator was about the amount of monthly ACBs and when payments should have started. Ms. Doyon’s occupational therapist recommended $6,529.99 per month. The Arbitrator awarded $864 per month, starting September 2014. Ms. Doyon’s appeal only challenges the Arbitrator’s decision on monthly entitlement, and not on the starting date.
The dispute about medical marijuana was with regard to payment of $3,443.65 for growing equipment and $12,600 for the drug. The Arbitrator awarded payment of $12,600 for the drug, but nothing for the equipment. Ms. Doyon submits that the Arbitrator should have ordered payment for the equipment as well. Allstate submits that the Arbitrator’s award for the drug is too high because it exceeds the expense that Ms. Doyon proved that she incurred.
Ms. Doyon sought to admit fresh evidence to define the issues which were in dispute at the arbitration hearing. The evidence was intended to modify the questions the Arbitrator answered in determining the amount to be paid for medical marijuana and growing equipment. Adjudicator Rogers dismissed the request because the parties presented the Arbitrator with an Agreed Statement of Facts which included the issues to be decided.
The facts of this case dictate that fresh evidence should not be admitted. This matter proceeded at arbitration based upon an agreed Statement of Facts which included a statement as to the issues to be decided. Therefore, although it is open to Ms. Doyon to argue that the Arbitrator failed to decide the issues that the parties put before him, it would be patently unfair to allow her to amend the issues on appeal. Further, it could not be an error for the Arbitrator to fail to decide an issue which was not before him.
Ms. Doyon applied for ACBs in October 2014 by submitting an Assessment of Attendant Care Needs (Form 1. The evidence before the Arbitrator included the two Forms 1 and the oral testimony. On appeal, Ms. Doyon concedes that “the preponderance of evidence was that 24-hour care was not required”, but argues that the Arbitrator erred in preferring one opinion. She submits that the Arbitrator fettered his discretion by engaging in a process of “final offer selection” which limited him to choosing between two assessments he knew to be flawed, leaving no option for a middle ground. In the alternative, she submits that the Arbitrator failed to give adequate reasons for preferring Ms. Abraham’s opinion. She submits that the evidence supported the conclusion that some additional supervisory care was required and it was the Arbitrator’s duty to determine the appropriate amount. Adjudicator Rogers rejected these submissions, finding that the Arbitrator did not engage in a process of “final offer selection”. Rather, the Arbitrator made findings of fact to support his preference of Ms. Abraham’s opinion and he adequately explained those findings in his reasons. There was no evidence before the Arbitrator to explain a need for the basic supervisory care, except round-the-clock. There was therefore no basis for an award of what Ms. Doyon now seeks.
The hearing before the Arbitrator was not recorded, so there is no transcript. However, there is no dispute that the Arbitrator asked the parties whether he was limited to a process of “final offer selection” in determining entitlement to ACBs. The Arbitrator referred to it himself in his reasons. He stated that, after getting submissions from the parties, he decided to follow the approach in Whyte and State Farm Mutual Automobile Insurance Company. The Arbitrator in Whyte fixed the amount of ACBs based upon the findings of fact she made.
It is apparent from the Arbitrator’s reasons he did the same in this case. He did not simply pick between two flawed opinions. Instead he chose one opinion because it was in keeping with his assessment of all of the evidence. This was a finding that the Arbitrator was entitled to make. It is reversible only if the Arbitrator failed to give reasons that permit meaningful appellate review. In this regard, the Arbitrator gave adequate reasons for his findings and there was no error.
The Arbitrator’s reasons for preferring one opinion meet the Kanareitsev requirements. In Ms. Doyon’s written submissions, there is extensive reference to the testimony she believes the Arbitrator should have accepted, but did not refer to in his reasons. This serves to illustrate that Ms. Doyon is really asking Adjudicator Rogers to substitute his view of the evidence for the Arbitrator’s, as Kanareitsev prohibits. It is also improper for another reason. Since the hearing was not recorded, there is no record of the testimony. There is therefore nothing in the appeal record to show what the testimony was, except as reported in the Arbitrator’s reasons.
Adjudicator Rogers not accept Ms. Doyon’s submission that the Arbitrator erred in determining her entitlement to monthly attendant care. Her appeal in this regard is therefore dismissed.
Ms. Doyon seeks payment for the growing equipment as well. Allstate seeks to reduce or set aside the amount awarded for the drug. In denying the payment for growing equipment and ordering payment of $12,600 for the drug, the found that Ms. Doyon was not entitled to both the cost of the drug and the growing equipment because common sense tells us that to pay for both, when you could simply buy the drug, is duplication. The Arbitrator ruled that the cost of the growing equipment was therefore not reasonable and necessary. On its face, that seems like a reasonable and correct conclusion. However, Ms. Doyon submits that there was no dispute between the parties about whether paying for both the drug and the equipment was reasonable. She submits that the only dispute, as evidenced by the Agreed Statement of Facts, was whether the expenses were incurred and whether the purchases accorded with the terms of her licence. Allstate agrees that Ms. Doyon correctly describes the issue as the parties framed it, but submits that it was nevertheless open to the Arbitrator to decide as he did. Adjudicator Rogers agreed.