Hergott: Medical cannabis and ICBC

ICBC might start reimbursing the expense of cannabis just like they do for prescription medications

Many crash victims are left with some level of chronic symptoms after running the gamut of therapies. Chronic symptoms can include discomfort and pain, sleep disorders and psychological impacts. Many get relief from the chemical compounds in cannabis.

Cannabis isn’t cheap.

In one case, Carrilo v Deschutter, 2018 BCSC 2134 , a medical specialist had prescribed a medical cannabis program consisting of a topical cream, tincture oil and oral capsule estimated to cost a total of approximately $4,500.00.

At some point, ICBC might start reimbursing the expense of cannabis just like they do for prescription medications. But until they do, injured victims will either go without important pain relief or be significantly out of pocket.

Crash victims who were not at fault in a crash can include the expense for medical cannabis in their claim for fair compensation against the at fault driver, which is usually a claim against their insurance company ICBC.

But a review of court decisions shows that it is not enough to say that it helps and show your receipts.

In the decision of Culver v. Skrypnyk, 2019 BCSC 807 , released May 22, 2019, the judge noted that a doctor had suggested the use of CBD oil to treat pain and sleeplessness, and Mr. Culver was finding it beneficial, preferring it to other medications.

A vial of CBD oil, which lasted approximately one week, was costing Mr. Culver $125.00. That’s an annual expense of $6,500.00.

The judge declined to require compensation for that future expense noting that the doctor who suggested it said there was a lack of evidence of the future benefits of the oil to Mr. Culver.

The judge concluded: “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.”

But two months later, on July 10, 2019, the decision of Erickson v. Saifi, 2019 BCSC 1120 was released.

Cannabis had been recommended to Ms. Erickson by one doctor, Dr. Montaner, who had not testified at the trial. Her neurologist who did testify said that she personally was not convinced it was helpful.

But the judge awarded compensation for Ms. Erickson’s future cannabis expense.

The judge noted that cannabis no longer requires a prescription in Canada, and made the common sense finding that “The use of cannabis for pain treatment is now more akin to self medication with over the counter pain killers.”

But he did not award the amount of compensation sought by Ms. Erickson, which was $200.00 per month for 20 years. He found that she had not clearly established the amount she required, nor how long she would require the treatment. The $20,000.00 he awarded, though would go a long way to covering that expense.

I have some recommendations to maximize the likelihood that your future cannabis expense will be compensated in a lawsuit. These recommendations apply to most future care expenses:

  1. Explore other, less expensive and more “conventional” ways to manage your symptoms;
  2. Use trial and error to determine the minimum amount you require on an ongoing basis, and journal the results of that experimentation so that you can credibly articulate how your life is different with and without levels of mediation;
  3. Explore the least expensive way to obtain the care. With cannabis, you might explore producing the product yourself; and
  4. Seek and follow your doctor’s recommendations, ensuring your doctor is kept fully informed.

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Hergott: Moral obligations and your will

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