C.M. v. Intact Insurance Company, 2020 CanLII 14419

C.M. v. Intact Insurance Company, 2020 CanLII 14419

Citation: C.M. vs. Intact Insurance Company, 2020 ONLAT 18-008995/AABS

Released Date: January 28, 2020

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:

C.M.

Applicant

and

Intact Insurance Company

Respondent

DECISION [AND ORDER]

ADJUDICATOR:

Poeme Manigat

APPEARANCES:

For the Applicant:

C.M., Applicant

Terio Francis, Counsel

For the Respondent:

Beata Morris, AB Specialist

Darrell March, Counsel

Bianca Alaimo, Law Clerk

Court Reporter:

Bruce Porter

HEARD: In-Person:

July 23, 2019

OVERVIEW

1The applicant ("CM") was injured in an automobile accident ("accident") on July 8, 2017 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal") when her claims for benefits were denied by the respondent, Intact Insurance Company ("Intact").

2Intact denied CM's claims because it determined that the treatment plans sought were not reasonable and necessary.

3CM bears the onus of proving entitlement on the basis that the treatment plans are reasonable and necessary, pursuant to s. 15 of the Schedule.

ISSUES IN DISPUTE

4The issues to be decided are as follows:

(i) Is the applicant entitled to receive a medical benefit in the amount of $877.93 representing an unpaid balance of the initial claim for $3,940.31 for psychological services, recommended by Medex Health Services in a treatment plan submitted on October 19, 2018, and denied by the respondent on October 31, 2018?

(ii) Is the applicant entitled to payment for the cost of an examination in the amount of $2,200.00 for a speech language pathology assessment, recommended by Medex Health Services, in a treatment plan submitted on January 8, 2019, and denied by the respondent on January 22, 2019?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant is entitled to payment for the balance of the psychological services claimed in the amount of $877.93.

6I find that the applicant is not entitled to payment for the cost of the speech language pathology assessment in the amount of $2,200.00.

7I find that the applicant is entitled to payment of interest on overdue payment of benefits.

Motions At the Hearing

8At the start of the hearing, the following motions were raised by the parties.

9The applicant requested that the clinical notes and records (CNRs) of the Insurer Examination Assessors (IE Assessors) be produced as per the order dated February 14, 2019.

10The respondent requested that the reports of Dr. Pilowsky and Dr. Fiati be excluded from the record; that Terry Lynn Clark, speech language pathologist, not be permitted to testify; and that the statement of issues produced by the applicant be excluded from the record.

Production of IE Assessors CNRs

11The applicant requested that the respondent produce the CNRs for its IE Assessors. The applicant argued that the respondent is in breach of the order dated February 14, 2019 for failing to produce these CNRs.

12The respondent submits that the applicant's request for the IE Assessors' CNRs was only brought to its attention on the day of the hearing. The respondent argued that it complied with the order dated May 2, 2019 and fulfilled all its obligations.

13The respondent did not produce the CNRs as per the order dated February 14, 2019 which states that the respondent shall provide the applicant with the CNRs of Dr. Ijaz Chaudry, Dr. Shahriar Moshiri and Dr. Gary Moddel by March 29, 2019. The applicant should have requested the CNRs at the second case conference of May 2, 2019 since they were not provided as per the February 14, 2019 order. Given the fact that the production of these CNRs was not an issue from February 2019 to July 2019 and that it was requested late in the process, which would delay the proceedings if produced, I decided to proceed without them. I find that the respondent does not have to produce the CNRs requested by the applicant.

Dr. Pilowsky and Dr. Fiati Reports

14The respondent requested that the reports of Dr. Pilowsky and Dr. Fiati be excluded from the record. The respondent stated that the order is clear that the applicant shall produce the documents on or before June 14, 2019. The respondent submitted that it sent follow up letters to the applicant on June 6, 2019 in order to obtain these records, but they were not provided.

15The respondent also stated that the correspondence confirmed that the file was never requested from Dr. Pilowsky directly. The respondent argued that the order is clear that the applicant had to request the files from the experts directly, which was not done.

16The applicant stated that it made several requests to obtain the records and that it produced what the experts provided. The applicant submitted that it made the requests to obtain the records, as stated in the order. The applicant stated that there is an email chain showing that it requested the records and the clinic confirmed that it sent everything in its possession.

17Based on my review of the relevant documents, the applicant made best efforts to obtain and produce all the records requested by contacting the clinic several times. In the interest of procedural fairness and keeping in mind that the applicant bears the onus of proof, I admitted the reports into evidence and gave it due weight. A liberal interpretation of the LAT Rules is warranted to allow the applicant the opportunity to include these reports and fully present its case. The prejudicial effect for the respondent, by admitting these reports, is mitigated by the fact that the respondent produced its own reports supporting its position which I reviewed and considered in rendering this decision. For the aforementioned reasons, I admitted the reports into the record.

Terry Lynn Clark (Speech Language Pathologist) Testifying

18The respondent argued that the speech language pathologist is not listed as a witness in the order dated May 2, 2019 and therefore she should not be permitted to testify. The respondent stated that when a party is in breach of an order, it is an automatic prejudice for the opposite party and the issue to be considered is the level of prejudice caused to the other party.

19The respondent further argued that allowing the speech language pathologist to testify is a breach of LAT Rules 10.2, 10.3 and 10.4. In regard to the applicant relying on Rule 9 to argue that the speech pathologist should be permitted to testify, the respondent stated that Rule 9 is about production and it is superseded by Rule 10.

20The applicant argued that allowing the speech language pathologist to testify is a minor breach of the LAT Rules with respect to timing. The applicant submitted that it sent a letter to the respondent on July 10, 2019 along with an OCF-18, detailing the issues that the speech language pathologist is speaking to. The applicant submitted that the issues that the speech language pathologist will testify to are well known by the respondent. The applicant submitted that an updated witness list was sent to the respondent two weeks prior to the hearing, which is in compliance with LAT Rule 9.2 (mandatory disclosure).

21The applicant submitted that there is no prejudice to either party by allowing the speech language pathologist to testify. The applicant stated there is no reason to prevent the speech language pathologist from testifying when she is present at the hearing. The applicant stated that the speech language pathologist did not have an opportunity to submit an expert report and therefore she is present today to testify. The applicant further stated that it had the speech language pathologist's resume so that she may be cross-examined on her credentials.

22The speech language pathologist is permitted to testify at the hearing subject to certain restrictions. The evidence that the speech language pathologist is expected to provide is relevant to this proceeding, because she is the one who completed the treatment plan in dispute and recommended speech language pathology assessment for the applicant. Notwithstanding the fact that the applicant failed to add her to the witness list in the order, the speech language pathologist is permitted to testify. It is also noted that the applicant advised the respondent of its intention to call this witness 10 days prior to the hearing. Once again, bearing in mind that the applicant has the onus of proof and in the interest of procedural fairness, I find it reasonable to allow the speech language pathologist to testify. The speech language pathologist will only testify regarding her interaction with the applicant and the documentation that she prepared (OCF-18). Given the limited scope of her testimony, the prejudicial effect of allowing her to testify is minimal, if anything at all, to the respondent.

Applicant Statement of Issue

23A statement of issue, summarizing the facts, was prepared and submitted by the applicant. This document was tendered as a statement of facts; however, it is inconsistent with the respondent's viewpoint of the same set of facts. The respondent requested that it be excluded from the record due to its inexactness and prejudicial effect to the respondent. The respondent raised several inaccuracies and incorrect statements in this document. The respondent argued that the opinion of the IE Assessor - Dr. Moshiri, psychologist, is misrepresented in this document.

24The respondent further submitted that the applicant counsel's argument is not fact regarding the proceedings. The respondent stated that numerous statements were inappropriately included in the statement of issue and should therefore be excluded in its entirety.

25The applicant submitted that it had no intention to mislead the Tribunal and conceded to the errors identified in the document. In regard to the other statements made in the document, the applicant's counsel submitted that the applicant is here to be cross-examine. The applicant admitted misquoting the IE Assessor – Dr. Moshiri but reiterated that it was not intended to deceive the Tribunal. The applicant submitted that the statement of issue is reflective of the applicant's evidence and should therefore be included in the record.

26The statement of issue document is excluded from the record. An agreed statement of facts can form part of a proceeding, however if the facts are disputed, it is best to present the evidence throughout the hearing and let the Tribunal determine what the facts are.

27The respondent raised numerous inaccuracies with the statements made in this document and the applicant conceded that some of those inaccuracies were legitimate mistakes with no intent to deceive the respondent or the Tribunal. Excluding this document, which is offered as the statements of the applicant, is not prejudicial to the applicant who is present at the hearing. The applicant can testify to the facts of this case through her oral testimony.

ANALYSIS

Psychological Treatment Plan

28The applicant was involved in a motor vehicle accident on July 8, 2017, as a result of which she suffered physical and psychological injuries. A treatment plan was submitted by the applicant's treating psychologist requesting 12 psychological treatment sessions at 1.5 hours for each session.

29The applicant submitted that, since the accident, she has been struggling with her physical and mental health, which disrupt her daily life. The applicant testified that prior to the accident, she had no psychological impairment and was in perfect health. The applicant submitted that the psychological treatment being claimed is reasonable and necessary to help her properly recover from the accident. The applicant argued that the OCF-18 in dispute was never reviewed by a qualified psychologist and the denial of her treatment plan was improper as per s. 38 of the Schedule.

30The respondent partially approved the plan but refused to pay the balance of $877.93. The respondent takes the position that 12 psychological treatment sessions of 1 hour each are appropriate to help treat the applicant. The respondent submitted that it took all the necessary steps to provide the applicant with the treatment that she required as a result of the accident.

31The issue that I must determine is whether a 1.5 hour psychological session is reasonable and necessary and the onus is on the applicant to demonstrate that.

32The applicant testified that her health has deteriorated since the accident; that she is less social, is anxious, nervous, and exhausted. The applicant also testified that she experiences frequent headaches and that her memory is not good. The applicant testified that, prior to the accident, she had no history of headaches or concussions, and that she never had to see a neurologist or psychologist.

33The applicant's treating psychologist diagnosed her with anxiety disorder, adjustment disorder, severe depression, chronic pain, insomnia, post-traumatic stress disorder and concussion symptoms. The psychological IE assessor in a report dated April 20, 2018 diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood.

34The respondent stated that it is not disputing that the applicant requires treatment. The respondent submitted that the disagreement between the parties is about the length of each psychological treatment session sought by the applicant. The respondent argued that the onus is on the applicant to prove that 1.5 hours with the psychologist, per session, would be necessary for the applicant's treatment. The respondent submitted that the applicant failed to produce evidence to prove that 1.5 hours with the psychologist, per session, is necessary. The respondent stated that medical evidence suggests that there is nothing extraordinary about the applicant's condition that would warrant 1.5 hours of psychological therapy, per session. In support of its position, the respondent relied on the opinion of the psychological IE assessor, who found that 1 hour of psychological therapy per session was enough to treat the applicant's impairments.² The respondent further argued that the fact that the applicant's treating psychologist failed to attend the hearing to testify is indicative that she is not supportive of 1.5 hours of psychological treatment per session, and that 1 hour per session is enough.

35Based on the evidence provided, I find that the applicant has met the onus of proving that the plan is reasonable and necessary. My reasons are as follows.

36I find that the treating psychologist is the most qualified person to determine how long each psychological treatment session should be. The medical evidence before me supports the proposition that the applicant needs 1.5 hours of psychological treatment per session. I agree with the respondent that it would have been better to have the treating psychologist attend the hearing to testify as to why 1.5 hours per session is necessary. By the same token, the psychological IE assessor was also not present at the hearing to defend his opinion that only 1 hour of psychological therapy is required to treat the applicant. At any rate, the treating psychologist's failure to attend the hearing is not a valid reason in and of itself to decide that the applicant has not met her onus. The Tribunal has an obligation to review and consider the totality of the evidence before making a determination regarding the length of each therapy session.

37Both the applicant and respondent made submissions and tendered evidence in regard to the applicant's psychological condition, however I find these arguments irrelevant to the issues in dispute since the parties both agree that the applicant suffered from psychological impairment as a result of the accident. The question to be determined is whether the length of time being recommended for treatment sessions is reasonable and necessary.

38The applicant's treating psychologist is the one who will conduct the psychological therapy sessions for the applicant. Presumably, she is knowledgeable of the time required to adequately treat the applicant's psychological impairment due to her experience, expertise and understanding of the applicant's psychological difficulties. There are two competing opinions (treating psychologist vs. psychological IE assessor) before me regarding the length of time the applicant needs for psychological treatment. Neither of the reports explain why 1 or 1.5 hours is recommended for the applicant. Both psychologists simply make their recommendation as to the length of time required for each psychological therapy session. As stated above, neither of the psychologists attended the hearing to justify their recommendation with respect to the length of each psychological treatment session. The applicant testified that the psychological treatments with the treating psychologist were helpful and it helps her deal with various feelings/emotions. The applicant is not required to prove with absolute certainty that 1.5 hours of psychological treatment is reasonable and necessary. The applicant must prove on a balance of probability that 1.5 hours of psychological treatment is reasonable and necessary. I am persuaded by the applicant's testimony that the psychological treatment that she is receiving once a week with her treating psychologist is necessary to help her cope with her psychological difficulties. I find the applicant to be a credible witness who was forthright during her testimony even when her answers were not favourable to her position. Based on the aforementioned reasons, I am satisfied that the 1.5 hours per session recommended by the applicant's treating psychologist is reasonable and necessary.

Speech Language Pathology Assessment

39The applicant is seeking payment for a speech language pathology assessment. The applicant submitted that, since the accident, she has difficulty with her speech and requires the services of a speech language pathologist. The applicant testified that she struggles communicating effectively and often forgets the purpose of her conversations. The applicant submitted that she has difficulty expressing herself since the accident and argued that the speech language pathologist treatment would allow her to get back to her pre-accident state.

40The respondent submitted that the denial of this plan was appropriate. The respondent argued that the applicant failed to satisfy its onus of proving that this assessment is reasonable and necessary. The respondent submitted that the speech language pathologist had limited involvement with the preparation of the plan. The respondent also submitted that the speech language pathologist failed to review all the relevant medical documents that were available before submitting this plan. The respondent stated that the speech language pathologist failed to communicate with the other medical professionals who had assessed the applicant in order to get a full understanding of the applicant's difficulties. The respondent argued that, despite reviewing the neurologist report that stated that the applicant had no difficulty with her speech, the speech language pathologist still proceeded to prepare the OCF-18 for a speech language pathology assessment.

41The speech language pathologist testified that she briefly met with the applicant for approximately 10 minutes. She also testified that she only kept and reviewed part of the psychological IE assessor report prior to submitting the plan. The speech language pathologist testified that she met with the applicant and the applicant treating chiropractor for 5 to 10 minutes. She also testified that she did not conduct any testing on the applicant or assessed her prior to submitting the plan. The speech language pathologist testified that she observed the applicant's speech as being coherent and articulate. The speech language pathologist further testified that the applicant's self-reporting of speech difficulty is what prompted her to submit this treatment plan for an assessment.

42The applicant testified that her employment requires that she communicates with staff, including the sales team and engineers, on a regular basis via telephone and in person. The applicant testified that she can communicate effectively and accurately with her co-workers and staff at work. The applicant confirmed that she has not been disciplined at work and that her employer has made no complaint with respect to her ability to perform her work.

43Based on the manner the applicant described her employment, it appears to be a position that requires focus, concentration and ongoing communication. The fact that the applicant has been able to perform the duties of her employment without any complaints from her employer is indicative that she is able to focus, concentrate and communicate well.

44Based on the medical evidence available, the testimony of the applicant and the speech language pathologist, I do not find this plan reasonable or necessary. The applicant's family doctor and the doctors who completed the insurer examination assessments did not raise any concern regarding the applicant's ability to communicate effectively. The only evidence to suggest that the applicant requires speech therapy are the applicant's self-reporting of speech impediment and the OCF-18 completed by the speech language pathologist who admittedly did not observe any issues or conduct any testing to determine the validity of the applicant's statements. I attribute minimal weight to the OCF-18 completed by the speech language pathologist, because her testimony confirmed that she did not examine the applicant and assessed her speech before submitting the plan. The applicant's self-reporting is not enough to warrant a speech language pathology assessment.

45I find that the applicant has not satisfied its onus of proving that this plan is reasonable and necessary. The applicant failed to provide evidence to suggest that this assessment was required based on her impairments resulting from the motor vehicle accident. There is no persuasive evidence before me to support the proposition that the applicant displayed symptoms of speech language impairment, which would justify completing a speech language pathology assessment. Consequently, I find this plan is not reasonable or necessary.

CONCLUSION

46For the reasons outlined above, I find that:

(i) The applicant is entitled to the balance of the psychological services claimed in the amount of $877.93. The applicant is entitled to interest, if incurred, as per s. 51 the Schedule.

(ii) The applicant is not entitled to the cost of examination for the speech language pathology assessment.

Footnotes

1. 1O. Reg. 34/10.
2. 2Dr. Moshiri, Psychological Report dated April 20, 2018