Legal Blog

Back
01 May 2018

New Brunswick Court of Appeal Denies Plaintiff’s Claim for Cost of Medical Marijuana

by Andrew Moss
  • SHARE

Despres v. MacDonald Crane Service Ltd. et al., 2018 NBCA 13

The Plaintiff, Robert Despres, was injured in a workplace accident in September 2009 when his hand was crushed between a crane bucket and a building. As a result of the accident, the Plaintiff suffered pain and discomfort in his right thumb and hand. This evolved into Chronic Regional Pain Syndrome (hereafter “CRPS”).

The Plaintiff’s pre-accident medical history consisted of hypothyroidism and severe asthma. The Plaintiff’s asthma symptoms began at age two and continued to the date of accident. As an adult, the Plaintiff smoked a pack of cigarettes per day and marijuana despite repeated orders from his doctors to cease. 

After the crane accident, the Plaintiff’s doctors attempted to treat his CRPS with nerve blocks and botox but were unsuccessful. The Plaintiff became depressed and sometimes suicidal but refused anti-depressants. The Plaintiff began using marijuana without prescription three times daily to reduce pain. His doctors prescribed Nabilone (a “pot pill”) in 2011, and medical marijuana in 2012.

The Plaintiff received some workers’ compensation benefits from WorkSafeNB. The Plaintiff sued the crane’s owner and operator for damages, including past and future costs for medical marijuana. The Defendants denied the Plaintiff’s claim for medical marijuana.

Justice McLellan found the Defendants liable but denied the Plaintiff compensation for medical marijuana. Justice McLellan reasoned medical marijuana was not proper treatment for the Plaintiff because of his asthma, the fact he had young children living with him, and its potential negative effect on his motivation and employability.

The Plaintiff appealed Justice McLellan’s decision, including his denial of compensation for medical marijuana.  The Court of Appeal acknowledged Justice McLellan erred in finding second-hand marijuana smoke affected the Plaintiff’s children. Nothing indicated the children were ever exposed to the substance. Despite the error, the Court of Appeal denied the Plaintiff’s claim for costs of medical marijuana. The doctors that prescribed medical marijuana for the Plaintiff did so on the understanding he suffered constant excruciating pain. Surveillance videos showed he did not. The Defendants provided a medical report prepared by doctors who saw the surveillance videos. These doctors recommended against treating the Plaintiff with medical marijuana.

You can read Despres v. MacDonald Crane Service Ltd. et al., 2018 NBCA 13, in its entirety here.