Medical Benefits Including Medical Marijuana Paid with Overdue Interest

February 22, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Doyon and Allstate- Entitlement to benefits; entitlement to medical marihuana; insured meets burden of proof to receive benefits; interest on overdue payments awarded

Doyon and Allstate

Decision Date: 2016-08-31
Heard Before: Adjudicator Marcel Mongeon

REASONS FOR DECISION

Issues:

Ms. Doyon was injured in a car accident on February 9, 2009 and sought accident benefits from Allstate, however, when the parties were unable to resolve their disputes through mediation Ms. Doyon applied for arbitration at the FSCO.

The issues in this Hearing are:

1. Is Ms. Doyon entitled to Attendant Care Benefits from January 2012 to the present, less amounts received? If so, in what amount?
2. Is Ms. Doyon entitled to Housekeeping and Home Maintenance Benefits from February 9, 2011 to July 8, 2014 and, if so, in what amount?
3. Is Ms. Doyon entitled to payment for either marijuana growing equipment in the amount of $3,443.65 or medical marijuana for the period of June 14, 2012 to November 30, 2014 in the amount of $12,600.00, or both?
4. Is Ms. Doyon entitled to interest on any payments ordered?
5. Is either party entitled to its expenses of the Hearing?

Result:

1. Ms. Doyon is entitled to Attendant Care Benefits from September 2014 (one month before the submission of the initial Form 1) to the present in the amount of $864.00 per month. Accordingly, two additional months of Attendant Care are payable.
2. Ms. Doyon is entitled to Housekeeping and Home Maintenance Benefits from February 9, 2011 to July 8, 2014 in the amount of $17,800.00.
3. Ms. Doyon is entitled to payment for medical marijuana for the period of June 14, 2012 to November 30, 2014 in the amount of $12,600.00.
4. Interest is allowed at the rate of 2% per month, compounded monthly, on the following amounts. Ms. Doyon is entitled to interest on the medical marijuana benefit from the date the claim was submitted to Allstate, and on the Housekeeping and Home Maintenance Benefits from July 11, 2014. Ms. Doyon is entitled to interest on the additional two months of Attendant Care Benefits from September 30, 2014 for one payment and October 31, 2014 for the other payment.
5. Ms. Doyon is entitled to her expenses of the Hearing fixed at $6,725.00 plus applicable HST.

At the time of the car accident, Ms. Doyon was employed at the Windsor Casino as a valet. Ms. Doyon was also employed as a property manager in the townhouse complex in which she lived. After the car accident, Ms. Doyon returned to work at the Casino on modified duties. Eventually, Ms. Doyon stopped working at the Casino in September 2009. Ms. Doyon continued working as a Property Manager until December 2011. After the accident, during 2011, Ms. Doyon also sold jewelry at home-based jewelry parties. She ceased doing this later in 2011.

An OCF-19, dated November 14, 2013, by psychiatrist Dr. G sought a determination of catastrophic impairment on the basis of a class 4 marked impairment or a class 5 impairment due to mental or behavioural disorder. By an Explanation of Benefits Form dated April 25, 2014, Allstate determined that Ms. Doyon “sustained a catastrophic impairment as a result of the accident.”  The nature of Ms. Doyon’s impairment is psychological. She suffers clinical depression. The live testimony of Ms. Doyon’s expert, Dr. G, and her family physician, Dr. Z, clearly supported that Ms. Doyon suffers from chronic pain and depression as a result of the accident.

Ms. Doyon testified. There was also surveillance evidence presented. The Arbitrator found that Ms. Doyon suffers from chronic pain and depression. The chronic pain and depression are sufficient that Allstate has designated her impairments catastrophic. Despite the catastrophic impairment designation, Ms. Doyon is ambulatory and can function at a reduced level in daily activities. The medical evidence is clear that she is unlikely to ever be able to be employed in the future.

Ms. Doyon was paid Housekeeping and Home Maintenance Benefits post-accident until January 2011. A claim for Housekeeping and Home Maintenance Benefits was made by OCF-6, dated July 11, 2014, seeking $100.00 per week for housekeeping and home maintenance services from February 9, 2011 to July 8, 2014 (178 weeks), in the total amount of $17,800.00. No disability certificate was submitted with this claim. Allstate responded by an Explanation of Benefits, dated August 13, 2014, requesting particulars of the service provider, assistance provided, proof of payment and reason for the delay in claiming Housekeeping and Home Maintenance Benefits for the past three years. Ms. Doyon currently lives alone with two large dogs and a cat. Her physicians think these pets are valuable to get her moving.

Ms. Doyon and the occupational therapists for both Ms. Doyon and Allstate gave evidence regarding the state of Ms. Doyon’s home. As a fact the Arbitrator found that Ms. Doyon has, as a result of her chronic pain and her depression, been unable to attend to her normal housekeeping and home maintenance needs to what would be an expected level. There was general acknowledgment by both occupational therapists that Ms. Doyon needed assistance with her housekeeping and home maintenance needs.

Ms. Doyon submitted some receipts for actual housekeeping and home maintenance expenses. They were, in part, for payments to her son and girlfriend when they lived with her. In other cases, they were to friends for helping out. The Arbitrator found that Ms. Doyon is substantially unable to perform her own housekeeping and home maintenance, and that it is reasonable for Ms. Doyon to have housekeeping and home maintenance expenses of at least the $100.00 per week maximum amount allowed by the Schedule for such expenses if those services are being provided.

Ms. Doyon did not apply for and was not paid Attendant Care Benefits within the first 104 weeks following the accident, but applied for Attendant Care Benefits in October 2014. The Form 1 calculated an amount of $6,529.99/ month. The assessment was conducted by two personal visits at the beginning of September 2014 by an OT.

Allstate had Ms. Doyon’s attendant care needs assessed by its own Occupational Therapist which found Ms. Doyon required monthly attendant care in the amount of $864.00, which she received from November 24, 2014 to present. The significant difference between Ms. Doyon’s and Allstate’s assessments deals with the possibility that Ms. Doyon’s attendant care needs require 24 hours, 7 days per week attention.

The Arbitrator considered the evidence of Ms. Doyon’s physician and the occupational therapists.

Ms. Doyon’s family physician, Dr. Z, testified. The Arbitrator found his testimony to be forthright and not overly advocating for his patient’s position. Dr. Z testified at length about the notion of whether or not Ms. Doyon might do harm to herself, however, he had no concerns about Ms. Doyon’s safety in her home. He also noted that he had no concerns about Ms. Doyon continuing to have an unrestricted driver’s licence. Allstate’s occupational therapist recognized that Ms. Doyon required some attendant care services but did not believe that Ms. Doyon was in any position of danger if she did not have 24 hour, 7 day per week care. Ms. Doyon’s occupational therapist recalled seeing Ms. Doyon’s home smoke detectors in the kitchen without batteries. She was concerned that if Ms. Doyon was having a bad enough day, if there was a fire, she might just lie there.  The Arbitrator also considered surveillance evidence of Ms. Doyon, and her own evidence. He accepts she treats herself poorly, and that she has had thoughts of not leaving the house in a fire.

The Arbitrator considered all the evidence, and especially the testimony of her family physician and found that Ms. Doyon does not require 24/7 care. On that basis he determined that the appropriate Attendant Care Benefit is $864.00 per month.

Ms. Doyon held a valid Authorization to Possess medical marijuana, issued June 14, 2012, by Health Canada. This licence expired June 14, 2013. Ms. Doyon held a valid Personal-Use Production Licence, issued June 14, 2012, by Heath Canada. This licence also expired on June 14, 2013. Ms. Doyon obtained a valid Authorization to Possess and a valid Personal-Use Production Licence, both issued on August 1, 2013. Ms. Doyon is permitted, under the terms of her license, to either grow her own marijuana or purchase the marijuana from licensed suppliers but is not permitted to do both.

Allstate has agreed to pay for medical marijuana and/or related growing equipment that complies with the terms of the licences and the law, and has requested that Ms. Doyon provide particulars confirming that the amounts claimed have been from licensed suppliers and in accordance with her licence.

Ms. Doyon’s medical marijuana prescription was provided to her by her chronic pain specialist who did not testify. Her prescription has been recently increased. The family physician’s testimony was that he would not provide such a prescription because marijuana is not acknowledged as being effective in any meaningful manner that he accepts. However, he did admit that, as a result of Ms. Doyon’s usage of medical marijuana, she did not require other dependency-forming medical pharmaceuticals. He thought this was a “good sign” if the marijuana was able to let Ms. Doyon control her pain.

The Arbitrator accepted the fact that Ms. Doyon required the medical marijuana, and that she incurred expenses of $3,443.65 in obtaining her medical marijuana growing equipment. The Arbitrator found the amount she claimed is reasonable. In the matter of medical marijuana, the Arbitrator was also satisfied that from June 14, 2012 to November 30, 2014, Ms. Doyon should receive a Medical Benefit in the amount of $12,600.00, and thereafter at the rate of $600.00 per month.

The Arbitrator awarded interest under the old Schedule is 2% per month, compounding monthly. He also considered the matter of expenses. The Arbitrator awarded the expenses in favour of Ms. Doyon.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.