Applicant's Testimony Discounted Due to Lack of Credibility

April 16, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

J. M. v Wawanesa: Payment for medical assessments; procedural issues; applicant has inconsistent testimony and his evidence is given little weight; SABs fee caps are exclusive of tax

Date of Decision: January 31, 2017
Heard Before: Arbitrator: Chris Sewrattan

On August 22, 2011 J.M. was injured in a car accident. He applied for accident benefits under the SABS but Wawanesa denied payment for assessments relating to neurocognition and psychology, respectively, and the cost of transportation, prescription medication, and an ambulance fee. J.M. appeals to the LAT for payment.

Issues:

1. Is J.M. entitled to the cost of a neurocognitive assessment in the amount of $2,486.00, as submitted on July 6, 2015 and denied by Wawanesa on July 15, 2016?
2. Is J.M. entitled to the cost of a psychological assessment in the amount of $3,588.18, as submitted on May 7, 2015 and denied by Wawanesa on May 24, 2015?
3. Is J.M. entitled to the various other costs; ambulance fee ($45.00), MetroPass ($2,436.00), and prescription medications ($1721.47), as submitted on June 18, 2015 and denied by Wawanesa on July 15, 2016?
4. Is J.M. entitled to interest on unpaid benefit claims?

Result:

1. J.M. is entitled to payment in the amount of $2,000 plus tax for the neurocognitive assessment, and interest on this payment in accordance with the Schedule.
2. J.M. is not entitled to a psychological assessment or various other costs.

The Arbitrator noted that this case experienced a variety of procedural difficulties. The Arbitrator considered all the evidence and submissions, however, was mindful of three procedural fairness issues that arose in this case.

Substantive Issues

J.M. submits that he is entitled to $2,486.00 for the cost of a neurocognitive assessment by Dr. Z.  J.M claims that as a result of the accident he has suffered from seizure-like and related symptoms, including headaches, vertigo, and nausea. As noted, Wawanesa raises causation as an issue, submitting that J.M. has failed to prove that his cognitive impairment was caused by the motor vehicle accident. Since the impairment is not proven, Wawanesa submits, J.M. is not entitled to an assessment.

Wawanesa and J.M. provided submissions on distinct and separate issues related to the neurocognitive assessment, neither squarely addressing the submissions of the other. Wawanesa submits that the neurocognitive assessment was sought in a treatment plan separate from the approved assessments in order to skirt the $2,000 statutory cap on in s. 25(5) of the Schedule.

The procedural difficulty can be resolved by looking directly at what the Schedule requires. The Treatment and Assessment Plan for the neurocognitive assessment states, essentially, that the assessment’s intention is to help J.M. decide whether to bring a claim for a determination of catastrophic impairment. This is significant. It invokes s. 25(1)(5) of the Schedule, which requires Wawanesa to pay “reasonable fees” charged for the preparation of an application for a catastrophic impairment determination. That is all that the provision requires. It does not require that J.M. prove the motor vehicle accident directly caused his impairment. The causation requirement occurs at a later stage when J.M. actually seeks a determination of catastrophic impairment (see s. 45(1) of the Schedule).

The only question is whether the cost of the assessment is reasonable within the context of s. 25(1). The assessment cost $2,486. This breaks down to $2,000 for brain testing, $200 for documentation and support activity, and $286 for HST. Wawanesa suggests that the cost is artificial; it is fractioned off from a larger cost in order to skirt the $2,000 statutory cap on payment. The submission is compelling but the Arbitrator did not agree. Looking at the three assessments that were initially requested,[the Arbitrator remained convinced that the neurocognitive assessment is separate and distinct.

Is the cost reasonable? Not all of it. Section 25(5)(a) caps the payable amount for the “fees and expenses” of an assessment at $2,000. The $200 for documentation and support activity runs afoul of this rule. It is not payable. The remaining $2,000 in the Treatment and Assessment Plan is for brain testing. This is a reasonable cost in light of the equipment and procedures required for neurocognitive testing. Wawanesa is required to pay $2,000 for the neurocognitive assessment.

In the Arbitrator’s opnion the $2,000 cap on payment in does not include tax. The Legislature explicitly states the types of payments that are covered under the cap – “fees and expenses”. If the Legislature intended to include tax under the cap, it would have stated so. The absence of “tax” in the provision leads me to conclude that it is not included.

Wawanesa is required to pay $2,000 plus tax for the neurocognitive assessment.

The psychological assessment

J.M. submits that he is entitled to $3,588.18 for the cost of a psychological assessment by Dr. Lopo. There is no indication that the assessment is for an application for a determination of catastrophic impairment. The question before the Tribunal is whether the psychological assessment is reasonable and necessary.

The Arbitrator reviewed the testimony, affidavits, and medical evidence, and the law and determined that the evidence can be sorted as: expert medical opinion on the issue in dispute, conclusions from other psychologists, and affidavit evidence. The Arbitrator noted that J.M.’s credibility was significantly undermined by his inaccurate self reports of symptoms to his physicians. The inconsistencies also undermine the credibility of his physician’s report.

Due to the credibility issues the evidence submitted by J.M. is accorded little weight. Considering the evidence as a whole, the Arbitrator was not convinced that the assessment is a reasonable and necessary expense.

Cost for transportation, prescription medication, and an ambulance fee

J.M. submits that he is entitled to payment for transportation costs, prescription medicines ($1,721.47), and an ambulance fee. All of these claims are dismissed for non-compliance with the Tribunal’s Order dated September 26, 2016. The Order states that submissions for this written hearing are limited to 10 double spaced pages. The applicant’s submissions on payment for transportation, prescription medication, and an ambulance fee begin on page 10 of his factum and extend to page 12. The portion of his submission which appears on page 10 is about the transportation costs. On its own, this portion is not helpful.

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