After a car accident in British Columbia the cost of care awarded by the court can include medical marihuana. However, in the following personal injury case there was not enough evidence to make the connection between the car accident injuries and the need to smoke pot(2015 BCSC 57). This case also gives an excellent checklist for cost of future care claims principles to consider ( see below).
The claimant was driving his motor vehicle south on 8th Avenue in Kamloops, British Columbia when the rear of his vehicle was struck by a minivan driven . The force of the impact moved his vehicle forward but it did not hit the vehicle in front. The judge concluded that the claimant did not injure his mid-back in the accident and did not suffer any neurological injuries. It was found that the injuries in the accident were neck and shoulder injuries that cleared up in three weeks. The significant injury is soft tissue injury to his low back which was affected in his left leg. The court awarded a total of $136,827.45 including $65,000 for pain and suffering. However the cost of medial marihuana was denied for reasons I explain below.
The Cost of Marijuana After a Car Accident Injury
The claimant prior to his accident used street marijuana occasionally and recreationally. He testified that he sought out marihuana to ease his pain as a result of his back injury following the car accident. He was smoking two joints a day.One of his doctors prescribed one gram a day, which is equivalent to two joints a day. The doctor confessed at trial that he was not an expert as it relates to the treatment of pain with marihuana. There was no reference to use of marijuana for pain in the doctor’s expert report. There was also no evidence in this case that ICBC ever paid for the cost of marihuana to treat pain before the trial.
In fact none of the other doctors who treated the claimant commented on the use of medical marihuana except one doctor who said that he had patients that report smoking marihuana to treat their pain. There was no evidence before the judge or any reference to any conclusive studies that suggest treating pain with marihuana.
The claimant however relied on Joinson v. Heran, 2011 BCSC 727. The court in Joinson, made an award for marihuana so long as it was ordered from Health Canada. That case was found to be of no importance in this case as the test still is what is reasonably necessary on the medical evidence so as to promote the medical well-being of the claimant. 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.
In this case no such evidence was before the court and the judge declined to make an award for medical marihuana. To learn more about this topic read my post on forcing injury claimants to smoke pot.
Cost of Future Care after a Car Accident Injury
The cost of future care was reviewed more generally by the Supreme Court and, according to the judge, the following principles must be considered when assessing the cost of future care:
1. The award for cost of future care is based on what is reasonably necessary on medical evidence;
2. In considering not only what is medically required, but also that which the injured person is likely to incur;
3. Those services and items for future care that the injured person is unlikely to use cannot be justified as reasonably necessary;
4. When considering items for future care, there should be some relationship to the severity of the injury and its need;
5. The purpose of a future care award is to promote the mental and physical health of the injured person;
6. The award must be fair to both parties;
7. Contingencies, both negative and positive must be considered. Evidence on contingency should be presented, but if there is no such evidence, then a range of 20 percent should be considered;
8. An injured person should be encouraged to do what he can do for himself or herself;
9. In assessing the cost of future care, duplication must be avoided; and
10. There are two methods of calculation, one taking all costs of future care, including basic living expenses and deducting from the award for lost earnings the percentage which would have been spent upon such expenses. The second way is to calculate only the additional costs that arose from the injury and allow a full award for lost earning capacity. The method used depends on the evidence and the kind of injury.
ICBC had paid for housekeeping as accident benefits in this case but ICBC had refused to pay for a pain program. The judge, despite refusing the cost of pot for pain, was not prepared to award the cost of the pain program item of future care as he found that the claimant would be unlikely to pursue it.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B