FSCO catastrophic injury award a first for medical marijuana
A recent decision in a decade-old catastrophic injury case represents the first time medical marijuana has been awarded under automobile no-fault benefits in Ontario – and is also likely the largest-ever award by an arbitrator at the Financial Services Commission of Ontario, says Toronto personal injury lawyer Kevin Doan.
TN and The Personal Insurance Company Decision
According to the decision, the applicant in the case, T.N., was catastrophically injured in an automobile accident in October 2000. While she applied for and received certain accident benefits from Personal Insurance Company of Canada, the insurer denied her claim for other benefits. As the parties were unable to resolve their disputes through mediation, T.N. applied for arbitration at the FSCO. Read Law Times story
The no-fault benefits systems have been significantly restructured in Ontario since 1990, says Doan, a lawyer with Carranza LLP, who represented the applicant. Yet a decade later, an automobile insurer still treated a catastrophically impaired victim as if she sustained only minor injuries by providing no attendant care support for many years, he explains.
“I am relieved that an unfortunate victim of catastrophic brain injury sustained in an automobile accident has deservingly been awarded what likely is the largest award that has ever been ordered by an arbitrator at the Financial Services Commission of Ontario. The injured victim has endured so much since the accident over a decade ago in 2000 with little to no financial support from the insurer,” says Doan.
Doan notes that this is probably one of the longest FSCO arbitration hearings and therefore more time was required in assessing evidence, resulting in the July 26 decision.
Out of concern for the client’s safety and the lack of financial means to obtain 24-hour attendant care per day, before this arbitration hearing took place Doan says he brought a rare motion for interim attendant care benefits which was heard in February 2010 before another arbitrator at the commission.
“In November 2010, Ms. T.N. was awarded interim 24-hour care from February 2010, subject to the final arbitration order which was released on July 26, 2012. The final order affirms the need for 24-hour care since the date of the accident in October 2000 and on-going,” he says.
The sheer size of past 24-hour attendant care benefits awarded, from 2000 to date and on-going, is significant, says Doan. In this case, the insurer was ordered to pay T.N. attendant care benefits from October 2000 and ongoing, at a rate of $5,056.80 per month.
“Automobile insurers are obliged by law to treat their injured victims with good faith, by having the best interests of the victims considered in their adjustment of claims. In this case, the insurer paid absolutely nothing for about ten years for attendant care despite the obviously catastrophic brain injury and despite knowing that some attendant care was obviously required. The insurer also papered its file with a cursory and faulty attendant care assessment in the year following the accident with the stated intention of using such an assessment to defend against any future retroactive attendant care claims. This decision awards what is probably the largest amount of retroactive attendant care benefits ever at the commission,” he says.
This decision, explains Doan, is also the first reported decision in Ontario where medical marijuana has been awarded under automobile no-fault benefits.
“The arbitrator found, under the particular facts of this case where the injured victim has exhausted her extensive efforts in using other remedies and has endured for years the significant adverse side-effects from the other remedies, that she has made her case that medical marijuana may be awarded under the no-fault automobile policy. In my view, this case should not encourage victims to resort to medical marijuana as the first treatment of choice. Rather medical marijuana should be a last option,” he says.
Ultimately, says Doan, the decision highlights the need to ensure that automobile insurers be reminded of their duty of good faith to their injured clients.
“This decision helps to restore some faith in the civil justice system for one of its unfortunate patrons, Ms. T.N. She has suffered much and often alone for over a decade. Her last hope and wish is that in the future no other catastrophically injured victims of automobile accidents have to go through what she has gone through with her insurer. She has been through the proverbial hell and back,” he says.
In the meantime, Doan notes that the time for filing an appeal by the insurer has not expired. There also remain outstanding issues including the issue of a special award (in the event the insurer is found to have unreasonably withheld benefits) and interest to be decided by the arbitrator.
