Post-Collision Mental Health – The Treatment Hurdle
A look at the L.A.T.’s decision and reconsideration of 18-007991, J.V. and Intact Insurance Company
Insureds involved in car accidents should have access to accident benefits, regardless of who is at fault. Amongst other things, accident benefits cover the insured’s post-collision treatment cost. They are comparable to collateral benefits you receive through work but have a distinct treatment plan and approval procedure. The treatment provider submits a treatment plan to the insurer explaining the diagnosis and appropriate course of treatment. The insurer reviews the plan and generally responds in one of three ways:
- approve the treatment plan;
- partially approve the treatment plan; or
- deny the treatment plan.
A partially approved treatment plan could mean that not all treatment outlined in the plan is “reasonable and necessary.” It could also mean that the cost of the treatment is too high. In that case, the insurer would agree to pay a portion of the proposed rate.
The Professional Services Guideline (Guideline) drafted by the Financial Services Commission of Ontario, updated in 2014, applies minimum treatment rates to certain providers:
Despite its visual practicality, the Guideline has its quirks which lead to an alarming trend in treating post-collision mental health. It starts with the lack of available treatment providers, mainly psychologists. To be paid directly by the auto insurer, psychologists or their clinics must be registered through a standard invoice procedure called Health Claims for Insurance (HCAI). Most psychologists are reluctant to do so because of payment delays, reduction in fees and extra paperwork. If you happen to find a psychologist who is registered with HCAI, the practice is often flooded with patients, leaving a wait time upwards of 8-10 months.
To get around this issue, psychologists team up with psychotherapists, counsellors or social workers to provide the needed treatment. The psychologist will run the assessment while the psychotherapist, for instance, provides the recommended treatment.
If a service provider is not included in the guideline (such as psychotherapists), it is up to the parties to decide the appropriate rate (the parties being the insurer and the treatment provider). The clinic then looks to the insured to pay the balance on the agreed rate. If the insured does not agree with the rate, it is up to him/her to dispute it. The License Appeals Tribunal (“LAT”), just dealt with one of these disputes in J.V. v Intact (Tribunal File Number: 18-07991/AABS).
J.V. v Intact (Tribunal File Number: 18-07991/AABS)
The plaintiff was in a car accident. He was diagnosed with a psychological condition resulting from the collision. The assessor, presumably a psychologist, suggested cognitive behavioural therapy (CBT). A treatment plan was submitted by a regulated psychotherapist trained to provide CBT.
Since psychotherapists are not mentioned in the guideline, it was up to the parties to decide the appropriate rate. The psychotherapist’s hourly rate for a non-insured patient was $150/hour. Her hourly rate was listed at $149.61 in the treatment plan. The insurer agreed that the treatment was reasonable and necessary but disagreed on the hourly rate. They approved the treatment plan at a rate of $99.75/hour.
Adjudicator Parish noted that psychotherapists were not governed by the guideline but refused to disentitle them from receiving the minimum hourly rates of psychologists where appropriate. She explained:
I find that based upon Ms. Barefoot’s credentials, specialized training within the area of cognitive behaviour therapy, and her experience, this warrants her being paid an hourly rate of $149.61 as noted within the Guideline for psychologists, and psychological associates. I do not agree with the respondent’s position that because she does not have all of the same training and accreditation as a psychologist or psychological associate that it disentitles her to being paid the same hourly rate noted within the Guideline that a psychologist or a psychological associate would be paid. Ms. Barefoot is providing cognitive behaviour therapy, a service she is qualified to provide. Ms. Barefoot is a registered psychotherapist who specializes in cognitive behaviour therapy and is registered with both the Canadian College of Professional Counsellors and Psychotherapists (“CCPCP”) and the College of Registered Psychotherapists of Ontario (“CRPO”). Her fee for uninsured patients is $150.00 per hour.
The adjudicator approached the issue focused on the treatment provided and the provider's credentials. She explained that both psychologists and psychotherapist may share the necessary credentials to provide specific treatment, in that case, CBT. The value of that treatment should not be lessened by the provider’s title alone.
Since being published, this decision has been mentioned by several lawyers and treatment clinics alike. The hope is that insurers will act accordingly and start to increase treatment rates to reasonable numbers. Notwithstanding, insurers continue to offer rates as low as $58.19 per hour to psychotherapists.
As stated by the insurer in JV v. Intact, "if the Guideline needs to be updated [...] it is the responsibility of the Superintendent to do so.” Since the guideline remains stagnant on the issue, there’s no statutory obligation to increase rates. The decision does nothing to force insurers to offer appropriate rates, so why would they?
There is no doubt that the decision should give confidence to those who wish to dispute the issue; however, disputing a low treatment rate has its own hurdles. Let’s explore the option to dispute with a hypothetical:
The insured gets into a car accident. He is diagnosed with PTSD and its suggested by a psychologist that he receives CBT. The insured calls every HCAI psychologist in Ottawa. The earliest appointment he can get is in 10 months. The insured is referred to a psychotherapist who is regulated and trained to provide CBT. The psychotherapist is registered with HCAI and available to start treatment within two weeks.
The psychotherapist usual rate is $150.00/hour. The treatment plan sets out that rate. The insurer responds stating that the treatment is both reasonable and necessary; however, they agree to cover the treatment at only $60.00/hour. The insurer is asked to reconsider this position. They refuse and maintain $60.00 as the appropriate hourly rate, offering the opportunity to the insured to dispute the issue.
The insured’s car accident was in July 2018. He was diagnosed in June 2018 and a treatment plan was submitted later that month at a total value of $2,000. The treatment plan was partially approved on the above terms in August 2018. Since the client cannot afford the additional $90.00 per treatment session, he goes without it and tries to deal with issues on his own while the matter gets resolved.
The insured’s lawyer applies to the LAT later in August to dispute the insurer’s position. An in-person hearing is scheduled for April 2019. The reasons for the decision returns in November 2019.
The decision of the adjudicator is to increase the rate to $149.61/hour. The insurer then applies for a reconsideration. That reconsideration is by the same adjudicator. The adjudicator reconsiders and holds the previous decision. The reasons regarding the reconsideration are returned in April 2020. The insurer then takes the matter to the Divisional Court for judicial review...
The insured is left in limbo for at least 2 years. You would think that, at the very least, the insurer would pay the insured’s legal costs in disputing the rate. But, the LAT awards only nominal costs ($500-$2000) in very limited circumstances. Notwithstanding the decision in his favour, the insured would be responsible for his legal fees.
If the fallout of disputing and obtaining a favourable decision is to have treatment delayed significantly, lawyers work and fees likely never compensated and no insurer accountability, why would anyone dispute it? I must applaud the zealous advocacy provided in J.V. v. Intact. Despite all deterrence, they and their client put the issue on paper before the LAT. Adjudicator Parish approached the issue logically and confirmed there was merit in their frustration. Unfortunately, we continue to be bound by a fractured system used to endorse low arbitrary treatment rates. Pushing the issue before the LAT will hopefully force the Superintendent to adjust the Guideline accordingly.
Frequently Asked Questions
Three weeks ago I was at a retail store and tripped over winter matting near the entrance. I fell and broke my wrist. Today an Insurance adjuster called me. He said I was responsible to look where I was walking but he offered me $5000.00 to help me out as I have been off work. I am on sick leave and have not lost any income. Is there any reason not to just take the money?
Plenty of Reason. Leaving aside what happened, and what you might be entitled to recover as a result of your injuries, it is always a good idea to consult with a Lawyer before taking a settlement proposed by an insurance company. Insurance adjusters work for Insurance companies and they do not approach a settlement based on what you are entitled to. They offer money based on the risk of what you might receive by way of an award. Generally, they will try and settle a claim or potential claim for as little as they reasonable can in order to close off a risk.
A Lawyer will work for you. Many Lawyers offer a free consultation. I find I ask a lot of questions and do a lot of listening during a consultation. I try to give my client an understanding of the legal issues arising in their circumstances, and what the options are going forward.
Assert your rights. Over the years I have come to understand that people almost always benefit from at least consulting with a Lawyer before trying to settle with an insurance company. There is a significant imbalance between a lone individual and a huge insurance company. A Lawyer has the knowledge to help level the playing field. In my experience insurers will see a greater risk when dealing with an injured person who is represented by a Lawyer. Greater risk to insurers leads to better settlements.
I was injured in a car accident which was not my fault more than 3 years ago. I have just learned that as a result of my injuries I will need surgery and may never be able to work again. Before learning this from my doctor I had believed my injuries were not that serious and I would fully recover. Can I sue the driver that hit me?
Limitations and their exceptions
That is a complicated question. Generally speaking, although there are exceptions, you may commence an action for damages in Ontario anytime up to 2 years after an event, or after you reasonably learned of the consequences of an event. If you know of the consequences of an event where you suffered injuries or losses, you generally lose your right to sue as of the second anniversary of the loss.
There are various exceptions to this rule. Recently, the Ontario Government has abolished limitation periods for victims of sexual assault.
Furthermore, limitations generally don’t apply to people under a legal disability, and that includes minors (people under the age of 18).There is also a legal doctrine of discoverability. Discoverability provides that a limitation period does not begin to run against a person until that person knew or ought to have known of a loss, and in some cases the extent or seriousness of a loss can be an issue.
What should you do?
The first thing you should do is get legal advice from a Lawyer as soon as you become aware that something has happened. There are other shorter limitation periods including notice periods which can be just a few days, arising in some circumstances. A Lawyer can give you advice and help you pursue your rights as appropriate.
Secondly, even if you think too much time has gone by, you should consult with a Lawyer. If circumstances provide an exception to the usual limitation periods, a Lawyer will be able to advise you of this fact and advocate on your behalf.
All cases are specific to their facts and the above information should not be relied upon to determine rights in particular circumstances. Lawyers often provide no obligation free and confidential consultations to prospective clients. So it is a good idea to seek out legal advice from a Lawyer if you have any doubt or questions about your rights.
What should I do if I am injured and someone else is responsible?
As a litigation Lawyer, I am often retained weeks, months or even years after a client has suffered an injury as a result of another’s negligence. Ideally, if you are injured as a result of someone else’s negligence, you should contact a Lawyer promptly to review the circumstances of the incident. I routinely meet people for a no obligation consultation to discuss matters such as liability, limitation periods and evidence that must be preserved.
At the scene of the accident, you should take several steps immediately, whether it is a motor-vehicle accident or a slip and fall, a dog bite or injury caused by a defective product:
- Identify who is responsible (i.e. exchange of information). If possible, take photographs of obvious material damage (in the case of a motor vehicle collision, take photos of the other party’s car as well as your own);
- Record via photographs or notes how the incident occurred (e.g. slip fall on uneven pavement); and
- Identify and obtain contact information of any witnesses to the incident – this is crucial, as witnesses can be lost forever if not identified at the scene.
As a Lawyer representing injured people, I have found that taking these easy steps can be the difference between having a long drawn out fight about legal liability and moving to a meaningful discussion about compensation reasonably quickly.
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