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.
Somatic Symptom Disorder - What is it and how can we prove it?
The Supreme Court of Canada (SCC) recently crystallised the importance of considering how psychiatric injuries accompany physical ones. In Saadati v. Moorhead, Saadati was in a car accident and suffered psychological and emotional trauma. He was awarded damages for mental injury based on the evidence of a lay witness who explained that Saadati’s personality changed post-accident. Expert evidence was not necessary, and the award did not need an attached “recognizable psychiatric illness.” The court found that requiring mental injury to pass the threshold of medical-expert testimony showing a “recognizable psychiatric illness,” while not requiring the same “classificatory label” of physical injury, would amount to unequal protection for those with a mental injury.
This SCC decision confirmed that the law of negligence accords identical treatment to mental and physical injury. This is a decision that is often looked at, as of late, with an overwhelming increase in the diagnosis of somatic symptom disorder (SSD). In dealing with my fair share of personal injury cases, I’ve started to notice this increase. The criteria for the illness remain broad, and like so many other cognitive/psychological conditions, it tends to be met with quite a bit of push back from defendants.
The DSM-5 characterises the condition as follows:
“SSD is characterised by somatic symptoms that are either very distressing or result in significant disruption of functioning, as well as excessive and disproportionate thoughts, feelings and behaviours regarding those symptoms. To be diagnosed with SSD, the individual must be persistently symptomatic (typically at least for 6 months).”
I tend to see this diagnosis when clients are suffering from longstanding subjective physical symptoms. The client is in extreme physical distress, but there’s no explanation of where this additional distress comes from. The pain felt by the client is otherwise disproportionate to the actual seriousness of the injury. I’ve always viewed it as an uncontrollable dispute between the body and the mind. I say this because typically the body is ready to be healed but the mind isn’t.
The proof isn’t as solid as we wish it was. The driving force of the diagnosis is the client’s own reaction to assessment and medical investigation. An SSD case can often be met by an assumption of “fake” injuries or plaintiff malingering. However, the SCC worded it properly when stating that the trier of fact should “not [be] concerned with the diagnosis, but with symptoms and their effects.” This point should always be emphasised when dealing with SSD cases. Focusing on the genuine statement of lay witnesses and providing a clear historical approach of the impact caused by the negligent act, remains the best means to put forward a strong SSD case.
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What if I or the other driver don't have insurance?
Answer: Ontario's auto insurers provide accident benefits and liability insurance. The accident benefits claim and the tort claim both work together toward covering your losses stemming from the accident. So, what happens when one of the parties involved doesn't have insurance? I've listed the most common scenarios:
A rear-ends B. A doesn't have insurance. B does have insurance:
The standard Ontario insurance policy includes coverage in-case the at-fault party is uninsured or underinsured. B's insurer would be on the hook for the accident benefits and the damages caused by the at-fault party as well (tort claim).
A strikes B (a cyclist). A has insurance. B doesn't have insurance:
In this case, it's up to A's insurer to provide both accident benefits in addition to compensation for the damages caused by A.
A is a pedestrian struck by driver B. A is injured. Neither A nor B have insurance:
In this circumstance, plaintiffs turn to the Motor Vehicle Accident Claims Fund. The fund may provide:
- Accident benefits
- Death and funeral benefits
- Compensation for personal injury or property damage (except for vehicles)
Although the fund does not work exactly like an insurer, it does provide a safety net for injured parties with no accessible insurance policy.
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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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