The Challenges of Arguing Cannabinoid Treatment in Personal Injury Claims

Introduction

In Canada, cannabis was regulated under the Controlled Drugs and Substances Act, SC 1996, c 19 and more specifically, given a legal exemption for medical use. On October 17, 2018, cannabis was legalized under the Cannabis Act, SC 2018, c 16.

Despite its history as a potentially effective and viable medical treatment, including but not limited to treating pain, nausea and vomiting (with less side effects than traditional medication), cannabinoid treatment was (and still is) demonized by members of the public. It is clear that additional research is needed to address the limitations and benefits of cannabinoid treatment. That said, the benefits of cannabinoid treatment are very prevalent to many people facing chronic pain and other serious illnesses. It is also important to consider that cannabinoid treatment can be administered in many different ways besides simply smoking it.

Lawyers are beginning to embrace the positive applications that cannabinoid treatment has for their clients, as well as their client’s recovery and the client’s legal claim. The side effects of traditional pain medications are well documented and even Vice Chairman, David Newall, acknowledged this in WCAT-2011-00480 (Re), 2011 CanLII 14304 (BC WCAT):

“With respect to the toxicity of the other medications, I agree with Dr Fuller. Tylenol #3 contains acetaminophen which can be highly toxic to the liver in high doses. Robaxisal contains ASA, which is also a potentially toxic agent at excessive doses, causing deafness, uncontrolled bleeding, and ulcers, among other things.”

Cannabinoid treatment is also a potential option for personal injury claimants who are allergic or otherwise prohibited from taking traditional pain medication. Addressing a claimant’s pain symptoms can have very positive effects on the quality of life, ability to work and resumption of activities of daily living for claimants.

The Challenges of Arguing Cannabinoid Treatment

For a lawyer arguing cannabinoid treatment on behalf of their client, it is generally required to prove a medical justification for the use of the treatment, as well as to establish that the award is reasonable and fair for both parties.

The medical justification requirement becomes a significant aspect in determining whether a claim for cannabinoid treatment will be successful, and may become more difficult to prove when a number of factors arise, including but limited to:

  • Lack of medical support or documentation;
  • If the claimant has a history of substance abuse;
  • If the claimant has already been using cannabinoids or recreational marijuana;
  • If the claimant is under the age of 25 (unless all other conventional therapeutic options have been attempted and have failed to alleviate the symptoms)

Samples in Case Law

In Poirier v. Robichaud, 2007 NBQB 50 (CanLII), the courts were not satisfied that an award for cannabinoid treatment was reasonable because despite the Plaintiff’s prescriptions of numerous medications, she was only taking a muscle relaxant and cannabis at the time of trial. She also did not have medical evidence to support her specific need for cannabinoid medication. She was not given permission to use cannabis and was purchasing it from the black market. As a matter of fact, her family physician indicated:

“that he has been aware of the situation since 2002 and is not against Ms. Poirier’s use of cannabis as it seems to relieve her pain.  However, he admits that an excessive use of cannabis has also had adverse effects on Ms. Poirier in the past as it was partly the cause of her hospitalization in the psychiatric ward in December 2002.  Furthermore, he believes that the cannabis has also brought about symptoms affecting her digestion.  Given the circumstances, I am not satisfied, on the evidence, that it would be reasonable to award a sum of money to Ms. Poirier to cover the past or future cost of the cannabis.”

In Datoc v. Raj, 2013 BCSC 308 (CanLII), the claim for medical cannabis was denied because the court questioned the Plaintiff’s credibility and severity of injury. Justice Sigurdson stated:

“My assessment of the plaintiff’s credibility is also negatively affected by my finding that there were inconsistencies in the plaintiff’s reporting of his symptoms to doctors.  While it is not unexpected that there would be some inconsistency in a patient’s reporting to his or her doctor, this aspect of his evidence did not enhance the plaintiff’s credibility.”

Video surveillance taken of the Plaintiff showed him moving fluidly without discomfort, as well as entering and exiting a car and taking photos as a real estate photographer. The Plaintiff claimed this ability was based on the medical cannabis he was taking in the morning and at the end of the day, but introduced no medical expert reports to support this contention.

Torchia v. Siegrist, 2015 BCSC 57 (CanLII), distinguished a previously successful claim for cannabinoid medication in Joinson v. Heran by stating:

“Mr. Torchia relies on Joinson v. Heran, 2011 BCSC 727 (CanLII). The court in Joinson, made an award for marihuana so long as it was ordered from Health Canada. That case is of no importance in the case of Mr. Torchia, as the test still is what is reasonably necessary on the medical evidence so as to promote the medical well-being of the plaintiff. Just because another case finds marihuana useful for one patient does not automatically infer that it is medically necessary for another plaintiff. In Joinson, medical marihuana was approved by Mr. Joinson’s psychiatrist to use so that Mr. Joinson’s use of morphine could be reduced. In Joinson, there was evidence before the court which led Mr. Justice Brown to conclude:

I accept the medical literature is controversial and this subject remains generally controversial among experts and authorities. Medical use of marijuana has many supporters, professional and lay, particularly for use in cases of intractable pain such as cancer, but also detractors who raise legitimate grounds for challenging its safety and health benefits. Given the conflicting medical opinions, scientific controversy and safety concerns, all the more reason for a judge requiring compliance with rules and regulations established for the legal purchase of medical marijuana.

No such evidence was before me. I decline to make an award for medical marihuana.”

In the more recent case of Culver v Skrypnyk, 2019 BCSC 807 (CanLII), Justice Davies denied a claim for cannabidiol (CBD) oil by citing a number of different decisions:

“The most controversial claim made by Mr. Culver for future medications relates to the use of CBD oil for pain. Dr. Burlin suggested Mr. Culver’s use of medical marihuana and CBD oil for his pain and sleeplessness but also testified as to a lack of evidence of the future benefits of the oil to Mr. Culver. Mr. Culver testified that each vial of CBD oil costs about $125 and last about a week.

In Murphy v. Hofer, 2018 BCSC 869 (CanLII) at para. 218 Sewell J. declined to make and award for CBD oil as a part of a cost of future care award because of lack of evidence that the beneficial effects are unavailable from other analgesics or sedative medication that would cost less.

In Carillo v. Deschutter, 2018 BCSC 2134 (CanLII), Dardi J. awarded $12,000 for medical cannabis as a part of the plaintiff’s cost of future care award. In that decision Dardi J. had the benefit of a significant amount of evidence about the potential benefits of medical cannabis and especially CBD oil as a pain management tool and as a potential replacement for other drugs. She also had the evidence of Mr. Carillo about the positive effects of the medical cannabis that he believed he was obtaining from its use.

Although I have Mr. Culver’s evidence that he prefers the use of CBD oil to other analgesics I do not have the benefit of a medical opinion on the benefits of that use. This is a medical issue which is likely to receive much attention in the coming years and medical evidence may in future establish a sufficient evidentiary base capable of supporting an award of the type now sought by Mr. Culver.

However, based upon the evidence adduced by Mr. Culver I am unable to award any amount for his use of CBD oil.”

Conclusion

Cannabinoid medication, despite its rising utility among pain and trauma victims, should not be seen as a “golden ticket” available to anyone and everyone in need of pain treatment. Its effects are still being researched and the courts will be reluctant to award cannabinoid treatment claims without sufficient medical evidence to support the necessity of the treatment. Each case must be treated as fact specific, with success depending on the circumstances of each claim.

Lawyers should take into consideration the following aspects when assessing a claim for cannabinoid treatment:

  • Expert evidence and medical documentation supporting the necessity of cannabinoid treatment for pain relief and other benefits;
  • The plaintiff’s history of recreational drug use (or dependency), as well as their own evidence that cannabinoid treatment has effectively relieved their symptoms and how it has improved their activities of daily living; and
  • Legitimate proof to justify use such as an authorization from Health Canada, as well as proof that other means of treatment was ineffective, prone to side effects, or lower in efficacy compared to cannabinoid treatment.
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