Licence Appeal Tribunal File Number: 20-014920/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:
Rosemary Buckley
Applicant
and
Certas Direct Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Janet Rowsell
APPEARANCES:
For the Applicant:
Anandi Naipaul, Counsel
For the Respondent:
Kiran Grewal, Counsel
HEARD: In Writing
Heard by way of written submissions
OVERVIEW
1Rosemary Buckley, the applicant, was involved in an automobile accident on August 18, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, Certas Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2After a case conference on June 2, 2021, the applicant and respondent resolved the issues in dispute except for two treatment plans/OCF-18s proposed by Dr. Cherisse McKay: one for a neurocognitive assessment and another for a psychological assessment. The respondent submits that the two assessments constitute duplications and should be considered one treatment plan. Also, it submits that pursuant to section 25(5)(a) of the Schedule, it is not required to pay more than $2,000.00 plus any applicable HST for the completion of any one assessment or examination.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $2,200.00 ($4,400.00 less $2,200.00 approved) for a mental health assessment and cognitive assessment (neuropsychological), proposed by Storrie Velikonja & Associates, submitted as two separate treatment plans dated December 4, 2018, and denied December 19, 2018?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant is entitled to $2,200.00 for the mental health assessment and cognitive assessment submitted as two separate treatment plans as they are each reasonable and necessary.
5I find that the applicant is entitled to interest on the $2,200.00 payable by the respondent.
ANALYSIS
6The applicant was taken to the Hamilton Health Sciences- Juravinski Hospital by ambulance following the accident, where she underwent diagnostic tests. First responders were informed that, although the applicant did not lose consciousness, she may have struck her head and suffered a contusion on the left side of her head. The applicant has a pre-existing history of migraine headaches, which affects concussion recovery. Relevant background information was provided by the report of Dr. Shayna Nussbaum, Clinical Neuropsychologist, and by Dr. Diana Velikonja, Clinical Neuropsychologist and Psychologist, dated February 28, 2019, which included a review of historic clinical notes and records (CNRs) from the applicant's family physician, Dr. J. Zizzo.
7The applicant disclosed a pre-existing history in the report by Dr. Shayna Nussbaum and Dr. Diana Velikonja relevant to the issues addressed in the disputed treatment plans. As a result of neck pain following a motor vehicle accident in 1990, the applicant underwent traction therapy. She also mentioned striking her head while ice skating on a separate occasion. The applicant reported a history of migraine headaches in the period prior to the August 18, 2018 accident. The history of intermittent migraine headaches is described in the CNRs of her family physician Dr. J. Zizzo and referenced in the neuropsychological report. The CNRs mention that a neurologist, Dr. S. Goodwin, met with the applicant for a consultation regarding her migraine headaches on April 4, 2016. The applicant took medication for her migraine headaches and reported to Dr. Goodwin isolated, prolonged pain in the left frontal and preorbital area. The applicant reported no history prior to the 2018 accident of mental illness or substance abuse. The applicant's particular pre-existing conditions are a relevant consideration in determining the reasonableness and necessity of the neurocognitive and mental health/addictions assessment because she had a pre-existing history related to headaches and possible concussions.
Are the two treatment plans reasonable and necessary?
8Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the motor vehicle accident. The applicant bears the onus of proving, on a balance of probabilities, that any proposed treatment or assessment plan is reasonable and necessary.
9The cost for an assessment is capped under section 25(5)(a) of the Schedule, which prohibits an insurer from paying more than $2,000.00, exclusive of taxes, for all fees and expenses for any one assessment. This includes all fees and expenses related to preparing and delivering reports in connection with the assessment. The Cost of Assessments Guideline clarifies that the $2,000.00 cap includes all costs, fees, expenses, charges, surcharges, overhead, and all administration and other costs incurred by or on behalf of the healthcare provider who conducted the assessment or examination.
10Dr. Cherisse McKay proposed an OCF-18 dated December 4, 2018, for a neurocognitive assessment described as providing the information and testing required following the applicant noticing ongoing cognitive and affective symptoms of poor memory, reduced concentration, irritability, driving anxiety, reduced cognitive efficiency, and noise sensitivity. Dr. Cherisse McKay also prepared an OCF-18, dated December 4, 2018, proposing a mental health and addictions psychological assessment to evaluate depression, driver's anxiety, and post traumatic stress disorder.
11The parties disagree whether the work proposed in the treatment plans in dispute is duplicative. The respondent submits that the two treatment plans proposed by Storrie Velikonja and Associates, for a mental health assessment and a cognitive assessment, constitute different sections of one assessment.
12The respondent submits that the issues in dispute in this case are the same as those in M.G. v Echelon General Insurance Company, 2020 CanLII 87929 (ON LAT), where the adjudicator determined that the denied treatment plan was not reasonable and necessary, but rather overlapped with and duplicated the services of another treatment plan by the same provider. The two treatment plans were directed at completing a neuropsychological assessment. The first treatment plan by the same provider addressed neuropsychological testing, whereas the denied report reported the results of the testing. The adjudicator determined that this was in violation of section 25(5)(a) of the Schedule. While, I agree with the analysis in M.G., I find the facts are distinguishable from the dispute before me. Here, two separate criteria are at issue in each treatment plan, one treatment plan focuses on assessing mental health and psychological impairments and the other treatment plan focuses on cognitive impairments.
13The respondent submits that the OCF-18 proposing a mental health assessment was submitted by Dr. Cherisse McKay as Part 1 of a two-part assessment and that Part 2 of the same two-part assessment is proposed as the cognitive testing. Only one neuropsychological assessment was produced on February 28, 2019, amalgamating both the cognitive and psychological criteria. The respondent submits that the disputed treatment plans each contain standard components of a neuropsychological assessment; accordingly, the proposed testing and assessment are not distinct or substantially separate services. I disagree with the respondent's submission, for the reasons that follow.
14During the interview pursuant to the Neuropsychological Assessment report dated February 28, 2019 by Dr. Shayna Nussbaum and Dr. Diana Velikonja, the applicant described cognitive issues following the accident including word finding difficulties, challenges to her short-term memory, slowed processing speed, and challenges with concentration. This is suggestive of the reasonableness and necessity of cognitive testing. In addition, the applicant described daily headaches, noise and light sensitivity. The applicant described emotional and psychological issues with increased anxiety in motor vehicles, nightmares, low mood and motivation. This is suggestive of the reasonableness and necessity of psychological testing.
15As described in the report by Dr. Shayna Nussbaum and Dr. Diana Velikonja, in addition to testing language skills, verbal comprehension, learning, memory functioning, attention, executive functions and problem-solving, tests were performed addressing behavioural observations, general cognitive abilities, visual-spatial, visual-perceptual, and visual-motor processing. The applicant's emotional functioning was tested for mood, depression, anxiety and post-traumatic stress, pain and somatic concerns, and general psychopathology, interpersonal and social functioning. I find that the report was divided and addressed the applicant's neurocognitive assessment and the applicant's psychological assessment as discrete issues.
16The conclusion of the report by Dr. Nussbaum and Dr. Velikonia was that the applicant sustained a mild traumatic brain injury as a result of the accident, in addition to a decline in her mental health with a diagnosis of Adjustment Disorder with mixed anxiety and depressed mood. In addition, the applicant met the diagnostic criteria for somatic symptom disorder, with predominant pain. Recommendations in the report include symptom management and a management plan for the concussion.
17The applicant submits that the facts in M.G. are distinguishable from the facts in this case, since M.G. involved one OCF-18 submitted for the purpose of testing and a second OCF-18 submitted for the purpose of reporting on the test results of the first OCF-18. The applicant submits that the separate treatment plans by Dr. McKay are independent of one another and there is no duplication of services from either treatment plan because one addresses psychological impairments and the other addresses neurocognitive impairments. Each OCF-18 proposes a different assessment, diagnosis and provision of treatment recommendations. I agree with the applicant's submissions.
18The respondent submits that the two treatment plans do not break down the amount of time taken for testing, interviewing the applicant and reporting. I agree with the respondent that the two OCF-18's at issue do not break down the number of hours required for the completion of the assessments. However, in correspondence from Dr. McKay dated November 24, 2021, she discusses the manner in which the two OCF-18's are stand-alone assessments, quantifying the amount of time required to complete the components of each assessment. Dr. McKay describes that during the initial intake interview with the applicant, the applicant described a range of both cognitive and psychological symptoms. Dr. McKay then details that the psychological assessment includes three hours reviewing medical records relating to the applicant's mental health and physical injuries; one to two hours of diagnostic psychological tests and an interview with the applicant to assess her psychological history and symptoms of depression, anxiety and post-traumatic stress syndrome. Following from the interview and tests administration, the scoring process of standardized psychological test measures diagnosing psychological symptomatology; then a meeting with the applicant for one hour to discuss the outcome of evaluations and communication of a diagnosis; and, as a final step, the preparation of a report outlining the results of the psychological evaluation which requires five to seven hours.
19Dr. McKay references in her correspondence the Professional Guidelines approved hourly rate of $149.61 for a psychologist's services. She projects 13 to 18 hours of her time to undertake and complete each step in the process of preparing the "Assessment of Mental Health and Addictions." She opines that the cost for the services would fall within a range of $1,944.93 to $2,692.98. Dr. McKay states that the additional $200.00 was charged for the purpose of completion of the submitted OCF-18 and was not included in the cost of the evaluation itself.
20Dr. McKay describes the assessment process for the applicant's cognitive symptoms, proposing in an OCF-18, an assessment to evaluate the severity of the brain injury suffered by the applicant as a result of the accident, with a separate process for the diagnostic interview from the psychological evaluation, for the purpose of determining the severity of the applicant's cognitive symptoms, to determine the presence of cognitive impairments, including standardized neurocognitive test measures to determine any premorbid or comorbid conditions that may affect the applicant's recovery.
21Dr. McKay states in her correspondence that although the two separate assessments are completed by the same practitioner, the purpose, methodology, test measures, and report content are distinct and contain separate clinical information. She states that while it is possible to combine these two separate evaluations into one multidisciplinary report, it is a matter up to the clinician's discretion.
22The applicant submits that in C.C. v Aviva Insurance Canada, 2020 CanLII 57410 (ON LAT), a neuropsychological assessment was comprised of two separate assessments within one report, including a neurocognitive assessment and a psychological assessment (which are the same separate evaluation components as in this case), with the total amount of the treatment plan being $6,500.00, plus $200.00 for the completion of the treatment plan. In C.C., a neuropsychological IE report was prepared by a neuropsychologist determining that both the neurocognitive assessment and the psychological assessment, contained in the same report, were reasonable and necessary. They were to be paid for separately, as stand-alone reports, however the reports had to be adjusted to fit within the statutory cap of $2,000.00 per assessment within the same report.
23The adjudicator in C.C. found that the information provided by the neuropsychologist supported the fact that the neuropsychological assessment as submitted by the applicant, provided justification that the two separate assessments contained within it were reasonable and necessary as separate treatment plans for separate assessments, albeit with the findings for the separate assessments contained within the same report. I similarly find each of the two separate treatment plans in this case for a neurocognitive assessment and a psychological assessment, contained within the same report, reasonable and necessary. The respondent argues that the cap in section 25(5)(a) of the Schedule, prevents the payment for more than one assessment in this case. I rely on C.C. where the Tribunal found that there were two distinct and separate stand-alone neurocognitive and psychological assessments contained within one report and that both were reasonable and necessary to be paid for as separate reports pursuant to section 25(5)(a) of the Schedule.
24Given the explanation of Dr. McKay in her correspondence dated November 29, 2021, and in consideration of the jurisprudence, I find that the two treatment plans are each reasonable and necessary as stand-alone assessments albeit contained within the same report. Accordingly, I find that the applicant is entitled to $2,200.00, being the unapproved balance of the two treatment plans.
Interest
25Interest will apply on the payment of any overdue benefits owing by the respondent pursuant to s. 51 of the Schedule.
ORDER
26I find that the applicant is entitled to $2,200.00 for a mental health assessment and cognitive assessment as they are both reasonable and necessary.
27I find that the applicant is entitled to interest on the $2,200.00 payable by the respondent.
Released: May 10, 2023
Janet Rowsell
Adjudicator```