There is always controversy regarding the approval of novel treatment modalities, and medical marijuana is no different. At first blush it seems sensational that marijuana would be approved as a reasonable and necessary treatment, as was decided in T.N. and Personal Insurance Company of Canada (FSCO A06-000399, July 26, 2012). In that case, the applicant suffered a head injury resulting in a catastrophic designation. Amongst other claims, the applicant sought payment of $1,200.00 per month from December 14, 2005 onward for marijuana. She claimed that she required this drug to alleviate pain, anxiety, insomnia and poor appetite. Her treating neuropsychiatrist prescribed marijuana, having decided that narcotic medication was inappropriate. The applicant also gave evidence that narcotics were not effective in providing relief without significant side effects. On the face of it would appear that marijuana could be reasonable and necessary in this instance. It is, after all allowable in law.

But is the ruling really that shocking? Yes, but not because it is marijuana, but rather the arbitrator’s rationale that led to the conclusion that the treatment was not caught by the experimental treatment exemption as per s. 14(3) of the predecessor SABS. The prescribing neuropsychiatrist admitted that the treatment was considered experimental by governments and insurers, and that he did not have a systematic knowledge of its use. The evidence of two other neuropsychiatrists also agreed that the use of marijuana was to be treated with caution. One confirmed that it was experimental. The other would not prescribe it at all. There was no evidence of credible evidence of independent research to suggest that its use was indicated, or even safe in this instance, particularly because the applicant was drinking large quantities of beer daily.

The arbitrator chose to view the claim through the prism of remedial legislation and whether the treatment is proven effective in the individual case. The arbitrator felt that despite the evidence presented, the insurer did not sufficiently assert that it was experimental. It was held that the most the insurer demonstrated was that the evidence did not prove that it was an effective treatment. This is a frustrating comment since it suggests that insurers must prove that an experimental treatment is not effective, an almost impossible task. In the end, self-report won the day: the claimant claimed relief and the prescribing neuropsychologist agreed.