LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards

Tribunals Ontario

Date: 2017/01/31 Tribunal File Number: 16-000258/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. M. Applicant

and

Wawanesa Mutual Insurance Company Respondent

DECISION

Adjudicator: Chris Sewrattan

Appearances: Counsel for the applicant: Fabio Longo Counsel for the Respondent: Kevin Mitchell

HEARD: Written Hearing: November 11, 2016

Overview:

1On August 22, 2011 the applicant was injured in a motor vehicle accident. He applied for accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Wawanesa Mutual Insurance Company (“Wawanesa”) denied payment for assessments relating to neurocognition and psychology, respectively, and the cost of transportation, prescription medication, and an ambulance fee. The applicant appeals to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for payment.

Issues in Dispute:

2The following issues are in dispute before the Tribunal:

(1) Is the applicant entitled to the cost of a neurocognitive assessment by Dr. Zakzanis in the amount of $2,486.00, as submitted on July 6, 2015 and denied by Wawanesa on July 15, 2016?

(2) Is the applicant entitled to the cost of a psychological assessment by Dr. Lopo in the amount of $3,588.18, as submitted on May 7, 2015 and denied by Wawanesa on May 24, 2015?

(3) Is the applicant entitled to the various other costs; ambulance fee ($45.00), MetroPass ($2,436.00), and prescription medications ($1721.47), as submitted on June 18, 2015 and denied by Wawanesa on July 15, 2016?

(4) Is the applicant entitled to interest on unpaid benefit claims?

Result:

3The applicant is entitled to payment in the amount of $2,000 plus tax for the neurocognitive assessment, and interest on this payment in accordance with the Schedule.

4The applicant is not entitled to a psychological assessment or various other costs.

Discussion:

Procedural Issues

5This case has experienced a variety of procedural difficulties. For clarity, they will be outlined at the outset to frame their discussion in the decision. I considered all of the evidence and submissions. However, I was mindful of three procedural fairness issues that arose in this case.

6First, a miscommunication. The applicant seeks payment for the cost of a neurocognitive assessment. The applicant and Wawanesa provided submissions on this issue at cross-purposes. Wawanesa’s submissions strictly hold the applicant to prove the causation of the injury for which he seeks a neurocognitive assessment. The applicant’s initial submissions do not speak to causation, addressing instead whether the assessment is reasonable and necessary. Wawanesa’s submissions put the applicant in the precarious position of proving causation in order to obtain a neurocognitive assessment that will, presumably, assist him in proving causation at a future date.

7Second, a disclosure issue. The applicant has produced a neurological report which touches on the causation issue. The difficulty is that this is not the report he promised to submit to Wawanesa and the Tribunal. To respond to the applicant’s unexpected neurological report, Wawanesa attempted to commission an independent medical examination under s. 44 of the Schedule. The applicant has failed to attend the examination, which he is entitled to do, but this has deprived Wawanesa of an opportunity to fully respond to the applicant’s evidence.

8Third, a compliance issue. Both parties were ordered by the Tribunal to provide no more than 10 double-spaced pages of written submissions. Both parties went over the 10-page limit.

9The procedural fairness issues are addressed in the discussion of the substantive issues that the Tribunal has been asked to resolve.

Substantive Issues

1. The neurocognitive assessment

10The applicant submits that he is entitled to $2,486.00 for the cost of a neurocognitive assessment by Dr. Zakzanis. According to the applicant, as a result of the accident he has suffered from seizure-like and related symptoms, including headaches, vertigo, and nausea. As noted, Wawanesa raises causation as an issue, submitting that the applicant has failed to prove that his cognitive impairment was caused by the motor vehicle accident. Since the impairment is not proven, Wawanesa submits, the applicant is not entitled to an assessment.

11Wawanesa and the applicant provided submissions on distinct and separate issues related to the neurocognitive assessment, neither squarely addressing the submissions of the other. The applicant’s submissions address the reasonableness and necessity of the assessment. His Reply submissions address the test for causation first raised by Wawanesa in their responding submissions, but significantly lack a connection between the legal test and the evidence before the Tribunal. Wawanesa focuses much of its submission on the causation issue, but it alternatively submits that the neurocognitive assessment is duplicative of assessments already approved. Indeed, Wawanesa submits that the neurocognitive assessment was sought in a treatment plan separate from the approved assessments in order to skirt the $2,000 statutory cap on in s. 25(5) of the Schedule.

12The procedural difficulty can be resolved by looking directly at what the Schedule requires. The Treatment and Assessment Plan for the neurocognitive assessment states, essentially, that the assessment’s intention is to help the applicant decide whether to bring a claim for a determination of catastrophic impairment. This is significant. It invokes s. 25(1)(5) of the Schedule, which requires Wawanesa to pay “reasonable fees” charged for the preparation of an application for a catastrophic impairment determination. That is all that the provision requires. It does not require that the applicant prove the motor vehicle accident directly caused his impairment. The causation requirement occurs at a later stage when the applicant actually seeks a determination of catastrophic impairment (see s. 45(1) of the Schedule).

13For now, then, the only question is whether the cost of the assessment is reasonable within the context of s. 25(1). The assessment cost $2,486. This breaks down to $2,000 for brain testing, $200 for documentation and support activity, and $286 for HST. Wawanesa suggests that the cost is artificial; it is fractioned off from a larger cost in order to skirt the $2,000 statutory cap on payment. The submission is compelling but I do not agree. Looking at the three assessments that were initially requested,¹ I am convinced that the neurocognitive assessment is separate and distinct.

14Is the cost reasonable? Not all of it. Section 25(5)(a) caps the payable amount for the “fees and expenses” of an assessment at $2,000. The $200 for documentation and support activity runs afoul of this rule. It is not payable. The remaining $2,000 in the Treatment and Assessment Plan is for brain testing. I accept that this is a reasonable cost in light of the equipment and procedures required for neurocognitive testing. Wawanesa is required to pay $2,000 for the neurocognitive assessment.

15In my view, the $2,000 cap on payment in s. 25(5)(a) does not include tax. The Legislature explicitly states the types of payments that are covered under the cap – “fees and expenses”. If the Legislature intended to include tax under the cap, it would have stated so. The absence of “tax” in the provision leads me to conclude that it is not included.

16Wawanesa is required to pay $2,000 plus tax for the neurocognitive assessment.

2. The psychological assessment

17The applicant submits that he is entitled to $3,588.18 for the cost of a psychological assessment by Dr. Lopo. There is no indication that the assessment is for an application for a determination of catastrophic impairment. The question before the Tribunal is whether the psychological assessment is reasonable and necessary.

18The applicant was examined in April 2016 by Dr. Lopo, who issued a psychological screening form dated April 29, 2016. The form concludes that the applicant meets the diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood. Dr. Lopo also noted that the applicant suffers from adjustment difficulties, severe depressive symptoms, anxiety and pain. The applicant supplements this evidence with two sources: (1) his affidavit and the affidavits of his mother and father; and, (2) conclusions from Dr. Picard and Dr. Pellizzari (a psychologist who treated the applicant).

19In response, Wawanesa submitted a report dated July 18, 2016 and addendum dated September 16, 2016, both from Dr. West. Dr. West is an independent psychologist hired by Wawanesa to determine whether the cost of the psychological assessment is reasonable and necessary. I will refer to Dr. West’s report and addendum as Dr. West’s “report”. Dr. West’s report concludes that the applicant has achieved maximum medical recovery and does not currently suffer from a generally recognized psychological disorder. Wawanesa submits that the proposed assessment is neither reasonable nor necessary as a result.

20For analytical purposes, the evidence can be sorted as: expert medical opinion on the issue in dispute, conclusions from other psychologists, and affidavit evidence.

i. Expert medical opinion on the issue in dispute

21There are methodologies common to Dr. Lopo’s screening form and Dr. West’s report. Both doctors reviewed a 2012 psychological assessment completed by Dr. Zakzanis. The 2012 assessment diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood – chronic, seizure disorder, and a psychological impairment that impacts his activities of daily living. Both doctors failed to consider the applicant’s clinical notes and records of Dr. Picard. In February 2014 Dr. Picard’s notes referenced PTSD, insomnia, and depression. Both doctors also failed to consider the reports of Dr. Pellizzari, a psychologist who treated the applicant from 2012-2014.

22While there are similarities in their methodologies, the difference in the way the methodologies are explained causes me to prefer the evidence of Dr. West over the evidence of Dr. Lopo. Unlike Dr. Lopo’s screening form, Dr. West’s report describes the actual tests that were used to provide a basis for his medical opinion.

23Dr. Lopo conducted a psychological interview and a symptom-rating checklist with the applicant. There is no explanation of what these testing mechanisms entailed or how they factored into Dr. Lopo’s medical opinion. Without such an explanation, I am unable to place much weight on its conclusions. I cannot trace how she arrived at her opinion; and therefore cannot assess the reasonableness of her opinion.

24I have no difficulty accepting Dr. West’s report. The report explains the tests that were conducted and what information was gleaned from them. After reviewing that information, I am able to assess the reasonableness of the conclusion that Dr. West drew from the tests. I find his conclusions to be reasonable, and I accept them.

ii. Conclusions from other psychologists

25The other sources of evidence relied upon by the applicant are not helpful. The reports of Dr. Zakzanis and Dr. Pelizzari range in date from 2012 to 2014, respectively. In my view, they do little to shed light on the applicant’s current psychological state. There is little question that the applicant was in need of psychological treatment after the motor vehicle accident in 2011. The issue before the Tribunal is whether he needs a psychological assessment five years later in 2016.

26Dr. Picard’s clinical notes, records, and conclusions are also not helpful. Dr. Picard is the applicant’s treating neurologist. With respect, I do not consider a neurologist’s diagnosis of psychological disorders to merit much consideration. In fairness to Dr. Picard, when he made his note it is unlikely he knew it would be part of an evidentiary record for an application for psychological counselling.

iii. Affidavit evidence

27The affidavit evidence of the applicant and his mother and father is likewise accorded little weight. Despite their best efforts, the medical opinion of non-experts cannot be relied upon to infer, soundly, that the applicant is in need of a psychological assessment. The most that the affidavits do is show that there has been an observable change in the applicant’s cognitive ability since the motor vehicle accident. This information is helpful. However, it falls short of proving the applicant’s case, both individually and alongside the other evidence.

28The reliability of the affidavits is undermined by other evidence. The affidavits paint a bleak picture of existence for the applicant, who is described as suffering from significant physical and psychological impairments. Surveillance footage obtained by Wawanesa shows the applicant going out to a restaurant and shopping at Wal-Mart. While this is in no way conclusive, it does call into question the picture painted in the affidavit evidence.

29The applicant’s credibility in particular is significantly undermined. He provided a number of self-reports to Dr. Mehdiratta. Some of this information is belied by medical records. Dr. Mehdiratta’s report notes that the applicant suffers from no prior conditions other than occasional headaches. However, the applicant’s medical records show a history of nosebleeds, obesity and a work-related crush injury to his hand. His OHIP records disclose a number of pre-accident hospital visits, the reasons for which are not disclosed to the Tribunal. Dr. Mehdiratta’s report asserts that the applicant was unable to return to attending the gym or playing sports and was less social due to his accident-related injuries. This is undermined by the applicant’s medical history. Injuries incurred while playing hockey caused the applicant to attend the emergency room in July 2012 and September 2013, approximately a year post-accident. He also attended the emergency room in March 2013 for a shoulder injury incurred while working out at the gym. The applicant reported being physically active on a regular basis, including performing weight training and cardio, as part of a weight loss program at Wharton Medical Clinic in 2014. Dr. Pellizzari, a psychologist who treated the applicant, issued a report on the applicant’s psychological progress. Dr. Pellizzari’s report stated that the applicant has continued to be very social and active post-accident, spending time with friends, working out at the gym, playing hockey, travelling with his family, and playing tuba.

30The inconsistencies also undermine the credibility of Dr. Mehdiratta’s report. I will return to this when I discuss whether the applicant has proven causation.

31All of the evidence submitted by the applicant is accorded little weight for the reasons set out above. Considering the evidence as a whole, I am not convinced that the assessment is a reasonable and necessary expense.

3. Cost for transportation, prescription medication, and an ambulance fee

32The applicant submits that he is entitled to payment for transportation costs ($2,436.00), prescription medicines ($1,721.47), and an ambulance fee ($45.00). All of these claims are dismissed for non-compliance with the Tribunal’s Order dated September 26, 2016. The Order states that submissions for this written hearing are limited to 10 double spaced pages. The applicant’s submissions on payment for transportation, prescription medication, and an ambulance fee begin on page 10 of his factum and extend to page 12. The portion of his submission which appears on page 10 is about the transportation costs. On its own, this portion is not helpful.

33The applicant is represented by counsel. The Tribunal expects that counsel obey its Orders. If a party wishes to vary an Order, they must raise it with the Tribunal ahead of time. The applicant did not do this.

34Wawanesa likewise provided response submissions past the 10 page limit.

35Although the parties have in differing degrees not complied with the Tribunal’s Order, I have read the entirety of their facta. I agree with Wawanesa’s submissions on these issues.

36With regard to transportation costs, both parties agree that the applicant’s driver’s license was suspended due to his seizure-like episodes. He was required to pay for Metropasses for public transportation. He seeks payment for that expense under s. 15(1)(g) of the Schedule. This provision requires that the applicant prove that the seizure-like episodes were caused by the accident. He has failed to prove causation.

37The lynchpin of the applicant’s causation argument is Dr. Mehdiratta’s report. As noted above, the report exhibits various inconsistencies with the medical records. This causes me to question its credibility. Dr. Mehdiratta’s report is further undermined by the lack of substantiation for its bold conclusions. The report diagnoses the applicant with mild traumatic brain injury and post-traumatic epilepsy, concluding that these injuries were caused by the motor vehicle accident. The diagnoses were made after Dr. Mehdiratta met with the applicant for the first time – five years after the motor vehicle accident occurred. Dr. Picard, who had provided treatment since the motor vehicle accident occurred was unable to make these diagnoses, and Dr. Mehdiratta did not address why he is in a better position than Dr. Picard to make these diagnoses after a single examination 5 years post-accident. Moreover, Dr. Mehdiratta’s report did not address other possible explanations for the applicant’s injuries. Dr. Derby, a neurologist commissioned by Wawanesa to prepare a report in July 2012, concluded that the applicant’s symptoms presented as “vaso-vagal syncopal episodes with brief associated convulsive activity”. Dr. Mehdiratta’s report does not consider or address Dr. Derby’s opinion, or attempt to rebut it. Because of this, I place little weight on the report.

38Dr. Mehdiratta’s report is the lynchpin of the applicant’s causation argument. The argument falls along with the report’s credibility.

39The applicant alternatively submits that he is entitled to payment for the Metropasses under s. 16(1) of the Schedule. However s. 16(4)(f) disentitles the applicant from payment through s. 16(1) unless his transportation expenses are “authorized transportation expenses”. There is no evidence that the Metropasses are authorized transportation expenses. The alternative submission falls as well.

40With regard to the prescription medication, the onus is on the applicant to prove his entitlement to payment. The receipts for prescription medication are of poor quality and do not identify the types of medications submitted. It is impossible to determine if the medication is a reasonable and necessary expense.

41With regard to the ambulance fee, there are no submissions or evidence provided as to why this expense was incurred, when it was incurred, and why it is a reasonable and necessary expense. The onus is on the applicant to prove his claim. The Tribunal cannot speculate. The claim is dismissed.

4. Interest

42The applicant is entitled to interest on the outstanding $2,000 payment for the neurocognitive assessment in accordance with the Schedule. There are no other outstanding payments within the scope of this hearing. As a result, there is no other interest owing within the scope of this hearing.

Conclusion:

43The applicant is entitled to payment in the amount of $2,000 plus tax for the neurocognitive assessment, and interest on this payment in accordance with the Schedule.

44The applicant is not entitled to a psychological assessment or various other costs.

Footnotes

1. 1Two of the assessments were approved and the third is the subject of this hearing.