IE contains errors and fails to consider applicant's psychological assessment - BC v Aviva LAT 17-001340

February 02, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

BC v Aviva LAT 17-001340

Decision Date: November 21, 2017
Heard Before: Adjudicator Avvy Go

ENTITLEMENT TO MEDICAL BENEFITS: applicant presents full assessment showing that treatment is reasonable and necessary for psychological   injuries resulting from car accident; insurer’s IE fails to consider applicant’s psychological assessment; insurer’s IE contains factual errors and discrepencies

B.C., 28 years old, was injured in a car accident on June 18, 2016 He was a rear passenger side passenger in a car that was t-boned on the passenger side while turning left. B.C. was taken to the hospital where it was determined that he sustained multiple fractures to his left shoulder and left pelvis/hip, among other injuries. B.C. was in the hospital for treatment for about ten days. He sought benefits pursuant to the SABs from Aviva. When the claims were denied B.C. applied to the LAT.

Issues:

1. Is B.C. entitled to receive a medical benefit in the amount of $2,150.00 for psychological services recommended in a treatment plan dated September 28, 2016? and
2. Is B.C. entitled to interest on the overdue payment of benefit?

Result:

1. For the reasons set out below, I find that B.C. is entitled to the medical benefit in the amount of $2,150.00 for psychological services, and the interest on the benefit.

B.C. was discharged on June 28, 2016 to the care of his sister. He required a wheelchair for the first two months when leaving the sister’s home. Since the accident B.C. has attended a number of treatment sessions including physiotherapy, massage therapy and chiropractic care. B.C. has had a difficult life prior to the accident, having been homeless at times and struggled for years with various mental health issues including depression, drug and alcohol addiction.

The Arbitrator reviewed the schedule and noted that the insurer shall pay for all “reasonable and necessary expenses” incurred by an insured person as a result of the accident for such services as medical, chiropractic, psychological, occupational therapy and physiotherapy services.

The Arbitrator reviewed the assessments of B.C.’s psychological functioning after the accident. B.C. was diagnosed with major depressive disorder, recurrent, moderate, with anxious distress, as a direct consequence to the accident. The assessment report noted that B.C. has a history of recurring depression, and “the stress of the accident with debilitating physical sequelae has precipitated a depressive episode. Due to living with chronic pain on a daily basis since the referenced date of loss, he has become pain focused, and is at risk for chronic pain. Based on his assessment there was a recommendation of ten sessions of cognitively oriented psychotherapy; in addition to therapy sessions, up to 2 hours for ongoing psychometric evaluation and clinical review, communication with his treatment providers, and preparation of termination reports.

Aviva denied this claim based on an IE’s paper review of the file on the basis that it was not reasonable and necessary from the injuries sustained in the motor vehicle accident.

B.C. submitted that the psychiatric evaluation and treatment is not only reasonable and necessary but essential to recovery. BC also noted that the IE paper review did not reference the psychological report, nor was it listed in the documents reviewed. The IE also contained factual errors about B.C.’s condition which are contained in sworn statements filed with the Tribunal.

Aviva’s submissions on this issue were brief. They noted first of all that the IE found B.C. had a long pre-accident history of drug and alcohol abuse, ADHD, and oppositional defiant disorder. From reviewing B.C.’s treating medical records which revealed that B.C. had not worked for some time before the accident due to these pre-existing mental health issues, and therefore concluded B.C. did not sustain a psychiatric impairment from the accident. The IE opined that B.C.’s significant mental health issues were not exacerbated by the accident and as such the proposed psychological treatment plan was not reasonable and necessary.

 Analysis

The Arbitrator focussed on the part of the Schedule which states in part that medical benefits shall pay for all reasonable and necessary expense incurred by or on behalf of the insured person “as a result of the accident”. The parties’ submissions reveal that one of the key points of contention is whether B.C. is seeking psychological treatment “as a result of the accident”, or is the treatment sought for his pre-existing mental health issues. As a corollary issue, the parties also disagree on whether the accident has exacerbated B.C.’s pre-existing mental health issues.

The Arbitrator noted that although the IE did not mention the psychological assessment, it did refer to the proposed treatment plan as a document reviewed. Given the psychological assessment was not referenced it makes it impossible for the Arbitrator to determine what aspects of it the IE disagreed with and therefore, it is unclear on what basis did the IE come to any conclusion on the physicality of B.C.’s pain.

The Arbitrator noted that all evidence presented by B.C. points to a worsening state of psychological health for which appropriate treatment would be required.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.