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
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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What does "no fee unless you win" actually mean and how do most personal injury Lawyers get paid?
Answer: Taken literally and with knowledge of what goes into every account "no win, no fee" is a legitimate statement. That means: Yes, the Lawyer will not get a fee if you don't receive compensation. However, in addition to fees, there are also costs and disbursements.
Costs represent the defendant's legal costs that are due if you get an adverse judgment. These fall on your shoulders and not your Lawyers. Costs insurance can be available in some cases and should be explored in your initial meetings (the earlier you get it, the cheaper it is).
Disbursements are the funds paid upfront by your Lawyer to carry your file. They include things like photocopying, mail/postage, travel costs, filing costs and medical-legal assessments. A Lawyer can run up disbursements in the thousands and if successful, the defendant will pay the value of your claim plus these disbursements. However, if you're unsuccessful, these disbursements are typically due and owed by you. Meaning, if you don't "win" you owe the Lawyer what was spent to carry your file. Unpaid disbursements may also be covered through your costs’ insurance.
Most personal injury Lawyers work off contingency, meaning that they are compensated based on the result. They take a percentage of your settlement. That percentage is typically 30-35% depending on the Lawyer.
The fee isn't as simple as just taking a percentage of the overall settlement. It must be broken down in accordance with what a Lawyer is legally able to take. For instance, they cannot take more than the client receives. They cannot take "costs" which amount to about 15% of the value of your claim and are used to counterbalance your contingency fee.
Here's how it might play out:
Let's say the value of your claim is $100,000. In addition to the value of your claim, the defendant will have to cover disbursements (what was paid to run your file) and costs. A typical settlement could be broken down as follows:
- value of claim: $100,000
- disbursements: $15,000 (including HST)
- costs: $12,319.37
- DEFENDANT'S PAYMENT: $127,319.37
The Lawyer's fee is taken out of the value of the claim and not the defendant's entire payment. So if the contingency is set at 30%, the Lawyer's fee in the above example would be $30,000 + H.S.T.. The Lawyer will take the disbursements as well to cover the funds he or she spent on the file. You're left with the remainder. Here's how it works using the above example:
- defendant's payment: $127,319.37
- disbursements: (-) $15,000 (including HST)
- legal fee: (-) $30,000
- HST on legal fee: (-) $3,900
- IN YOUR POCKET: $78,416.37
The exact calculation used could change depending on the facts of each case. As a note, claims are typically subject to pre and post-judgment interest at a variable rate. This will be added to the defendant’s payment.
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I was a cyclist involved in a car accident. What are my rights?
In short, the same as those of a driver or passenger. Liability may be handled differently, but the cyclist maintains a right to claim against the at-fault driver and seek benefits from the applicable insurer. Your car insurance is meant to provide accident benefits if you're involved in a car accident. It does not matter whether you were actually driving a car. As long as you have car insurance, your accident benefits should kick in. If you don't have car insurance, the at-fault driver's insurance will provide accident benefits. Either way, you should be covered by a policy. If neither of you has insurance, there's still the motor vehicle accident fund which acts as a safety net in cases where insurance is not available.
Typically, there's an assumption that the cyclist was not at fault. This does not mean you can pedal around with no regard to surrounding traffic. You still have to be diligent and you still owe yourself an obligation to proceed with reason. Any contribution found on your behalf will reduce the value of your claim. You can be deemed contributorily negligent if you don't wear the proper protective gear, or if you don't abide by the rules of the road.
Seasonal changes in traffic will often give rise to increases in car accidents involving cyclist. A good portion of the driving population does not properly adapt to these changes. This causes drivers to make assumptions they shouldn't make: disregarding their blind spot, failing to keep track of cyclist in the bike lane, opening their doors without thinking of oncoming cyclist. Unfortunately, the injuries are often devastating. Even with protective gear, the force of direct impact may leave the cyclist with serious, life-changing and permanent injuries.
Need a Personal Injury Lawyer? Reach out to a licensed professional today and get a no-obligation consultation