17-002734/AABS v Tradition Mutual Insurance Company, 2018 CanLII 2299

Licence Appeal Tribunal

Date: 2018-01-12

Tribunal File Number: 17-002734/AABS

Case Name: 17-002734/AABS v Tradition Mutual Insurance Company

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:

Applicant

and

Tradition Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Karly Hoar, Paralegal

For the Respondent: Richard Shaheen, Counsel

Held by Written Hearing: September 21, 2017

OVERVIEW

1The applicant was injured in an automobile accident on March 13, 2014 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”). The respondent refused to pay for the cost of examination for a psychological assessment. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES:

2The disputed claims in this hearing are:

1. Is the applicant entitled to receive payment for the cost of examinations in the amount of $1,995.33 for a psychological assessment proposed by psychologist Dr. JoAnne Leavy in a treatment plan submitted August 24, 2015, denied by the respondent August 25, 2015?

2. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the psychological assessment is reasonable and necessary as a result of the applicant’s accident on March 13, 2014. The applicant is entitled to interest on any amounts incurred to-date, pursuant to s. 51 of the Schedule.

BACKGROUND

4On March 13, 2014, the applicant lost control of the SUV they were driving and hit a curb, causing the vehicle to roll over onto the roof. The applicant was transported via ambulance to St. Mary’s Hospital in Kitchener. The applicant was diagnosed with a minor head injury and soft tissue injuries, and was discharged the same day. The applicant returned to the hospital less than two days later with on-going complaints of headaches, sleep disturbance, anxiety, and difficulty concentrating. The result of the follow-up visit to the hospital is unclear; however, submissions indicate that the applicant was discharged on the same day.

5The applicant attended at Hands on Health Wellness Centre where Dr Seksek performed an initial assessment and completed a Disability Certificate (OCF-3). The OCF-3 listed the applicant’s injuries as concussion, migraine headaches, dizziness, fatigue, anxiety, nonorganic sleep disorder, and soft tissue injuries of the neck, spine, knee, ankle and shoulder.

6The applicant submitted a Treatment and Assessment Plan dated February 25, 2015, completed by Dr E. Leader, proposing a psychological assessment. The respondent referred the treatment plan to an Insurer’s Examination by Dr C. West, psychologist. The respondent later denied the Treatment and Assessment Plan based on the psychological assessment report of Dr West, dated April 28, 2015.

7The applicant submitted another Treatment and Assessment Plan dated August 24, 2015, completed by Dr JoAnne Leavey, registered psychologist. The plan proposed a psychological assessment, which was denied by the respondent by letter dated August 25, 2015.

8The applicant later withdrew the February 25, 2015 Treatment and Assessment Plan. The applicant disputes the respondent’s decision to deny funding for the Treatment and Assessment Plan submitted August 24, 2015.

THE LAW

9Entitlement to payment for the cost of examinations is governed by section 25(1)3 of the Schedule. This section establishes that an insurer shall pay for reasonable fees charged by a health care practitioner for reviewing and approving a treatment and assessment plan under s. 38, including any assessment or examination necessary for that purpose.

PROCEDURAL FAIRNESS

10The applicant submits that they are entitled to payment for a psychological assessment on the basis of fairness. This is because the respondent had an opportunity to perform a psychological assessment and the applicant should have the right to respond to the respondent’s position. The applicant relies on Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986 (“Gonsalves”) as precedent dictating that a party ought to have an opportunity to respond to the opposing party’s evidence.

11The respondent’s submissions were silent on the applicant’s position regarding fairness.

12I find that this matter is distinguishable from Gonsalves because this matter does not involve the timely production of documents or arguments. In Gonsalves, the applicant’s assessment reports were delivered to the insurer shortly before a hearing, leaving virtually no time for the insurer to obtain an independent opinion on the applicant’s fresh evidence.

13In this matter, the applicant is requesting funding to obtain an opinion on the applicant’s injuries – not additional time to obtain the opinion. Regardless, my decision on the merits of this application does not turn on the procedural fairness submissions.

IS A PSYCHOLOGICAL ASSESSMENT NECESSARY?

The Applicant’s Position

14The applicant submits that section 15(1)(b) of the Schedule outlines that an insurer shall pay for all reasonable and necessary medical expenses incurred by an insured as a result of an accident, which includes psychological services. They believe the medical evidence warrants the need for a psychological assessment, which should be funded by the respondent.

15The applicant submits that their initial complaints included symptoms of a psychological impairment as evidenced in their Disability Certificate dated March 17, 2014. A second disability certificate, dated July 24, 2014, repeated the same symptom complaints.

16The applicant submits that the clinical notes and records of the applicant’s family physician, Dr Wong, also show evidence of a psychological impairment. In addition to the complaints contained in the records, the applicant submits that the fact that Dr Wong prescribed anti-depressants is indicative of the applicant’s psychological impairment.

17The applicant submitted the disputed treatment plan proposed by Dr Leavey as evidence to support the need for a psychological assessment. Specifically, that the telephone pre-assessment conducted by Dr Leavey concluded that psychological treatment would be required and that a full psychological assessment is needed to determine the extent of the psychological treatment required.

18The applicant also relies on the following evidence, which I found relevant to the dispute:

a. The clinical notes and records of Dr Wong, wherein he prescribed Elavil, an antidepressant, for the applicant;

b. An in-home assessment report dated August 29, 2014, where the occupational therapist suggests psychological treatment;

c. A neurological assessment dated November 20, 2014, where Elavil is recommended;

d. A neurological assessment report dated December 29, 2015, where amitriptyline, an antidepressant, is recommended; and

e. The clinical notes and records of family physician, Dr Choudhary, which has an entry stating that the applicant would benefit from a psychological consultation.

The Respondent’s Position

19The respondent advances three different reasons to support its position. First, it submits that the OCF-18 in dispute is not reasonable and necessary and that the opinion is based on the insurer’s examination report and addendum report, both completed by Dr West.

20Dr West’s opinion is that, based on the psychometric testing conducted, the applicant was not experiencing any clinically significant mental health symptomology and that counselling or psychotherapy is not required as a direct result of the accident. In the report, Dr West also notes that the applicant’s psychometric test scores exceed the maximum acceptable scores and suggests the applicant is amplifying symptoms.

21Second, the respondent submits that the Treatment and Assessment Plan is not proper because it was based on a short screening telephone interview. It states that the person conducting the telephone interview is unable to confirm the identity of the interview subject, to exercise clinical judgment or perform standard psychological screening by telephone, and that subjective psychological complaints cannot be properly verified in a telephone interview.

22Lastly, the respondent submits that the applicant’s family physicians, Dr Wong and Dr Choudary, are not psychologists or psychiatrists, are not qualified to diagnose a psychological impairment, and their records do not constitute Treatment and Assessment plans.

Analysis

23Based on the totality of the evidence before me, I find that the psychological assessment is necessary to determine the level of the applicant’s psychological impairment and what, if any, psychological treatment the applicant requires.

24I find the applicant’s evidence more compelling. The self-reported symptoms are consistent throughout the applicant’s evidence and are indicative of a psychological injury. The fact that the applicant had been prescribed antidepressants on more than one occasion by more than one health practitioner is also indicative of a psychological injury which would support further investigation and, possibly, treatment.

25The respondent’s evidence, specifically the psychological assessment report and addendum by Dr West, suggests that, based on the scores achieved, the applicant is amplifying symptoms. The findings in the report and addendum report are inconsistent. The reports conclude that the applicant is amplifying symptoms and discount the applicant’s symptoms of a psychological injury because of this. However, the reports are not persuasive because they also state that the amplified symptoms may not be deliberate.

26The respondent’s concerns with the ability of a psychologist to assess the applicant over the telephone in a pre-screening interview are not persuasive. I agree with the applicant’s reply submissions, which state that deficiencies in the pre-screening telephone interview would be remedied by conducting a full psychological assessment – which the applicant is proposing in the disputed treatment and assessment plan.

27I find that the applicant’s family physicians are qualified to render a diagnosis of a psychological injury. I am compelled by the applicant’s submissions that, based on the Joint Statement on Access to Mental Health Care from the Canadian Medical Association and Canadian Psychiatric Association, family physicians are the first point of contact and can detect and treat mental health disorders and make referrals to mental health professionals.

ARE THE FEES PROPOSED REASONABLE?

28In its submissions, the respondent noted that the proposed assessment contained $673.25 in fees associated with documentation. This was not a formal position but I will address it anyway.

29The Professional Services Guideline (the “Guideline”) ² provides a funding cap of $2,000.00 for any one assessment or examination proposed in an OCF-18. The Guideline is silent on the breakdown of the fees proposed.

30I find that the fees proposed in the Treatment and Assessment Plan are within the funding cap prescribed by the Guideline.

CONCLUSION

16For the reasons above, I find that the psychological assessment proposed by Dr Leavey is reasonable and necessary. I order the respondent to fund the cost of examinations in the amount of $1,995.33 for a psychological assessment of the applicant as proposed in the treatment plan submitted August 24, 2015.

17The applicant is entitled to interest on any amounts incurred to-date, pursuant to s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 2Professional Services Guideline, No. 03/14 (September 2014).