LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards
Tribunals Ontario
Tribunal File Number: 16-000940/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
J. C.
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
Adjudicator: Chris Sewrattan
Appearances:
Counsel for the Applicant: Tullio D'Angela
Counsel for the Respondent: Jocelyn Tatebe
HEARD: Written Hearing: November 7, 2016
REASONS FOR DECISION AND ORDER
Overview
1On May 18, 2014, the applicant was operating his motorcycle when he was injured in a motor vehicle accident. He applied for accident benefits under the Statutory Accident Benefits Schedule (the "Schedule"). Certas Direct Home & Auto Insurance Company ("Certas") denied two treatment plans related to psychological services and assistive devices. The applicant appeals to the Licence Appeal Tribunal for payment for these treatment plans.
Issues in Dispute:
2The applicant disputes Certas' denial of payment for the following treatment plans:
(1) $3,558.72 for psychological services from Dr. John Mills under a treatment plan dated February 25, 2016; and,
(2) $2,772.32 for assistive devices from Alliance Diagnostic & Treatments under a treatment plan dated May 24, 2015.
3In addition, the applicant claims interest on payment of the treatment plans in dispute.
Result:
4The respective claims for psychological services and assistive devices are dismissed.
Discussion:
5The applicant submits that he is entitled to payment for a treatment plan dated February 25, 2016 from Dr. John Mills for psychological services in the amount of $3,558.72. The timeline involving the claim for and adjustment of this treatment plan is important to understanding the applicant's submission.
6On June 10, 2015, the applicant submitted a Treatment and Assessment Plan (OCF-18) for a psychological assessment to determine whether psychological treatment was required as a result of the motor vehicle accident. To determine the reasonableness of this request, Certas directed the applicant to undergo an Independent Examination by Dr. Ralph Lubbers, a psychologist.
7On September 11, 2015, the applicant underwent an examination by Dr. Lubbers. On September 25, 2015 a report was prepared. In the report, Dr. Lubbers concluded that the applicant suffers from Adjustment Disorder with anxiety. Dr. Lubbers further commented that that the condition "results in impairment in affect regulation, heightened sensitivity to pain, and sleep/energy." It was recommended that the applicant receive a psychological assessment (not the treatment plan in issue) and, further, attend "eight 1-hour sessions of psychological treatment and two hours for psychological services for progress reporting."
8Dr. John Mills conducted the approved psychological assessment. He issued a report on February 25, 2016. The report concluded that the applicant suffers from:
- Adjustment Disorder with Mixed Anxiety and Depressed Mood
- Specific Phobia, Situational Type (motor vehicle)
- Somatic Symptom Disorder, with predominant pain, moderate and persistent
9Based on the findings of the report, Dr. Mills submitted a treatment plan (OCF-18) dated February 25, 2016 for $3,558.72 for psychological services. This is the treatment plan in dispute.
10The disputed treatment plan was submitted to Certas five months after Dr. Lubber's independent psychological evaluation of the applicant. On March 28, 2016 Certas denied the treatment plan and requested that the applicant attend another Independent Examination. That examination was conducted by Dr. Randy Silverman on April 22, 2016. Dr. Silverman issued a report dated May 4, 2016 which concluded that the psychological services requested were not reasonable and necessary. Certas denied the claim for treatment on the strength of Dr. Silverman's report. The report further concluded that the applicant developed an acute adjustment disorder (unspecified) in the aftermath of the motor vehicle accident. However, with the passage of time he was now coping satisfactorily with his accident-related stressors and his adjustment disorder was in partial remission. Dr. Silverman also commented that the applicant did not convey a high level of motivation for participation in mental health counselling.
11The Applicant has failed to prove that the psychological services are reasonable and necessary. The claim is dismissed for two reasons, each of independently ends the claim. Through discussion of these reasons I will address the applicant's submissions.
12First, the Applicant has failed to discharge his onus of proving on a balance of probabilities that the psychological services are reasonable and necessary. Even if I were to disregard Certas' submissions entirely, there is insufficient evidence and submissions to satisfy the applicant's persuasive burden. The applicant submits that Dr. Lubbers and Dr. Mills' respective reports prove that he has a psychological impairment in need of treatment. The submission's failure is that it does not demonstrate that the requested psychological services are reasonable and necessary for the applicant's impairment. Put more plainly, there is not enough to connect the dots between the applicant's impairment and the appropriateness of the treatment. Dr. Mills attempted to address the reasonableness and necessity of the disputed treatment in the Treatment and Assessment Plan (OCF-18) and his report. However, with respect, Dr. Mills' materials do not provide sufficient detail explaining why the specific treatment requested is reasonable and necessary for the Applicant's specific impairment. It makes clear that 'treatment' is necessary. More is required to discharge the applicant's onus however.
13The applicant's submissions do not assist. The applicant principally submits that when the claim for the disputed treatment was made on March 28, 2016, Certas had enough information at its disposal to conclude that the treatment is reasonable and necessary. The applicant relies heavily on Drs. Lubbers and Mill's respective reports. I have the same information before me and I am unable to conclude that the disputed treatment is reasonable and necessary. Indeed, Certas submits, and I agree, that Dr. Lubbers' report deserves less weight because it was conducted five months before the disputed treatment was requested. An insured persons' impairment can change over time. It is not static.
14The above analysis involves consideration of the applicant's evidence and submissions only, and giving it appropriate weight. The claim could be decided on this basis alone. I turn now to Certas' submissions and the second reason for dismissing the claim.
15As Certas points out, Dr. Silverman considered the Applicant's impairment (or lack thereof) and connected the dots explaining why the disputed treatment is not reasonable and necessary. I accept Dr. Silverman's conclusions as credible and trustworthy.
16The applicant challenges the credibility of Dr. Silverman's report by pointing out that Dr. Silverman makes potentially contradictory conclusions. Dr. Silverman concluded that with the applicant's Adjustment Disorder is in partial remission, the applicant has nearly reached maximum medical recovery. The applicant submits that this is untenable. An impairment cannot be in remission, suggesting further treatment is not needed, if a person has not yet achieved maximum recovery, which suggests a need for further treatment. This submission conflates the necessity of treatment with the reasonableness and necessity of the treatment in dispute. On my reading of Dr. Silverman's report, I infer that the applicant's Adjustment Disorder is in partial remission and he has not yet reached maximum medical recovery. There may be room for further treatment in the future. That treatment must be reasonable and necessary however. The disputed treatment lacks the qualities of reasonableness and necessity. Even if I am wrong in this regard, the alleged contradiction does not fill in the persuasive void in the applicant's case. There is still insufficient evidence to demonstrate that the disputed treatment is reasonable and necessary for the applicant's impairment.
17The applicant further challenges the credibility of Dr. Silverman's report by submitting that Dr. Silverman was incorrect to consider significant the applicant's lack of motivation for participation in mental health counselling. The applicant submits that a lack of motivation makes sense because the applicant was unable to improve his psychological condition without payment for treatment. I am not persuaded by this submission. The conclusion reached by Dr. Silverman and the inference submitted by the applicant are equally reasonable. Dr. Silverman must be allowed to pick one reasonable conclusion over another, and his report's credibility is not impugned by the choice he made.
Assistive Devices
18The applicant submits that he is entitled to $2,772.32 for Assistive Devices from Alliance Diagnostic. The claim stems from an Assessment of Attendant Care Needs Report completed by Sasha Stewart on May 24, 2015. A Treatment and Assessment Plan (OCF-18) was submitted to Certas on May 24, 2015. Certas responded on July 31, 2015 with a request that the applicant attend an Independent Examination. The examination was conducted by Leslie Hisey, and an In-Home Attendant Care Needs Assessment report was released on September 8, 2015.
19The report concluded that the disputed assistive devices are:
reasonable at this time ... Accordingly, the OCF-18, dated May 24, 2015, is considered to be partially reasonable and necessary ... However, when comparing the above quotes with the [claim] in question, it appears that some of the prices in the [claim] are elevated.
The report provided a list of alternate prices for the devices. The phrase "partially reasonable and necessary" in the above passage refers to a commode that is not in dispute. There is agreement amongst the parties that the assistive devices in dispute are reasonable and necessary. The disagreement is over reasonableness and necessity of their price.
20Certas advised the applicant in a letter dated December 1, 2015 that it was approving the OCF-18. Significantly, the letter stated that Alliance Diagnostics & Treatments "agreed to modify their recommendations for treatment." An addendum was attached to the letter setting out a modified cost of assistive devices of $790.78. The letter advised that requests for further treatment must be made through the submission of a new Treatment and Assessment Plan. Significantly, Certas paid the modified cost of $790.78 to Alliance Diagnostics & Treatments for the assistive devices. There is no evidence that the applicant submitted another Treatment and Assessment Plan for further assistive devices.
21For three reasons, the claim for assistive devices is dismissed.
22First, the applicant has failed to discharge his onus of proving on a balance of probabilities that the assistive devices are reasonable and necessary. The applicant's submissions to the Tribunal are devoid of explanation for why the entire amount of $2,772.32 is a reasonable and necessary expense for assistive devices. The Applicant relies on the fact that assistive devices were deemed in Ms. Hisey's report to be reasonable and necessary and were "approved as per modifications" in Certas' letter dated December 1, 2015. If this inference was drawn and taken at its highest, it would suggest an implicit admission by Certas that the cost of the devices is reasonable and necessary. However, that implicit assumption is quickly removed by Certas' explicit submission that the entire amount of $2,772.32 is not a reasonable and necessary expenditure. There is no additional evidence detailing why anything more than $790.78 needs to be paid as a reasonable and necessary expenditure for the assistive devices in question.
23Second, there is no evidence that the disputed assistive devices were not provided by Alliance Diagnostics & Treatments after the payment of $790.78. Certas made this submission in its written materials to the Tribunal. The applicant has not provided Reply submissions to shed light on the issue. It is required in this case because of the December 1, 2015 letter from Certas, which suggests that the assistive devices could be provided at a cheaper cost. In addition, there is no evidence that the applicant submitted an additional Treatment and Assessment Plan for further devices. The letter dated December 1, 2015 requested exactly this if the applicant was not satisfied with the assistive devices that he received under the $790.78 payment.
24Moreover, the most the applicant can claim is $1,981.56. This is the remainder from $2,772.32 after Certas' $790.38 payment is deducted. There is no evidence indicating why the $1981.56 is reasonable or necessary.
25Third, the claim may not be properly in dispute before the Tribunal. This issue need not be definitively decided in light of the first two reasons for dismissing the claim. It is addressed because Certas raised it in submissions. Certas did not bring a motion for its determination as a preliminary issue. Suffice to say, the letter dated December 1, 2015 is evidence that the OCF-18 dated May 24, 2015 was modified between Certas and Alliance Diagnostics & Treatments to reflect a reduced cost for the assistive devices. This modified OCF-18 was approved on December 1, 2015 by Certas. The OCF-18, as modified, is not in dispute. It could be dismissed under Rule 3.4 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version 1 (April 1, 2016) for lack of jurisdiction.
Interest
26The Applicant claims interest on payment of the disputed treatment plans. Given my decision, no interest is owing.
Conclusion:
27The respective claims for psychological services and assistive devices are dismissed.
Released: December 14, 2016
______________________________
Chris Sewrattan,
Adjudicator