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Volume. 4 Issue. 24 – June 17, 2020
Discoverability Confirmed Again
Tomec & Discoverability – More Absurdity – In 19-004884 v Royal Sun & Alliance, the Applicant, injured in an April 2015 accident, sought entitlement to ACB and Housekeeping benefits by way of a LAT application in April 2019. The Respondent argued that in each instance the application was filed well outside of the limitation period, given denials of the two benefits in October 2016 and August 2015 respectively. The Applicant raised a number of arguments, one being that she was not entitled to the funding until she was designated CAT in March 2019. Following initial submissions, the Court of Appeal released Tomec, and as a result the Tribunal requested specific submissions on the relevance of Tomec.
Regarding the Housekeeping benefit, the Tribunal found the present case to be a “similar set of circumstances to those addressed by the Court of Appeal”, and that “it would be an (sic) unfair and ‘absurd’ if the applicant had been required to contest this denial before the Schedule would have allowed her to access this category of benefits.” Similarly, regarding ACB entitlement, while there was a valid denial, “she could not have been aware of her possible entitlement after this date until she was deemed CAT. As such, requiring her to contest a denial for a period when she could not have been entitled to payments would have resulted in the ‘absurd’ situation described in Tomec.” As a result, the Applicant was entitled to proceed with the claim for post-104 ACB and Housekeeping.
CAT Assessments Not Automatic
CAT Assessment Not Warranted – Injured in a January 2015 accident, the Applicant, in 18-003066 v Certas, sought entitlement to numerous benefits, including a series of CAT assessment reports totalling $26,400. In support of the assessments, the Applicant’s chiropractor, in December 2017 “opined that the persistence of post traumatic injuries and symptoms with apparent plateau of improvement would suggest maximum recuperation from said injuries”. The Tribunal noted that “Tribunal decisions have consistently held that the correct test for entitlement to a catastrophic impairment determination assessment is ‘reasonable and necessary’.” In other words, the onus is on the Applicant to produce “evidence that there is reason to suspect that the applicant has the condition which she is seeking to have assessed.”
Noting that the Applicant had “provided scant evidence to support the reasonableness or necessity of this assessment”, the Tribunal relied extensively upon the CNRs of the Applicant’s family doctor. The records reflected there to have been a long history of depression and extreme stress at home. To that end, in October 2016, the Applicant left her marriage, found alternative housing, continued as the primary caregiver for her children and completed a school course that included work placements. In addition, the Applicant underwent spinal surgery in December 2018, determined by the Tribunal to be related to a “fairly significant” degenerative condition. Ultimately, the Tribunal found that the facts of the case would not support the requested assessments as reasonable and necessary, further that “taken as a whole, the evidence presented does not satisfy the ‘but for’ test of causation, but rather, is more consistent with a progressive degenerative condition.”
In Trending – Psychologist M.I.A.
The Tribunal considers the weight given to the Applicant’s psychological reports in 3 cases where the psychologist of record record seems not to have been involved.
Never Met Him – In 19-001251 v Aviva, one of the grounds upon which the Applicant sought removal from the MIG was due to the development of a psychological condition. The Tribunal ultimately preferred the evidence from the IE assessor as opposed to the Applicant’s, specifically referencing the fact that the Applicant confirmed never having met her own psychologist. Accordingly, the Tribunal found it “hard to give credibility to [the Applicant’s assessor’s] observations when he wasn’t there to make them.”
It was found that “the reality of [the Applicant’s] life is at odds with [the Applicant assessor’s] report”. Concluding, “there would seem to be little similarity between the person who [the IE assessor] assessed, and the person [the Applicant’s assessor] never met”.
A Disingenuous Report – In 19-005789 v Allstate, the Applicant also argued that psychological impairment warranted removal from the MIG. The Respondent relied upon its IE report, wherein there was no basis for a psychological diagnosis, and in fact the Applicant stated that he had no interest in participating in psychological counselling. In contrast, the Applicant’s assessor opined there to be “significant” (Tribunal emphasis) psychological symptoms, “clearly having an adverse affect on his overall functioning”
The Tribunal gave no weight to the report of the Applicant’s assessor, noting same to be “so out of line with the bulk of the medical documentation”, ultimately deeming the report to be “so disingenuous that I cannot rely on it as evidence”. The Tribunal further found it “very troubling that [the Applicant] reported to [the IE assessor] that he was ‘feeling fine’ and was unaware that he had previously undergone a psychological assessment with [the Applicant’s assessor] or that psychological treatment was being recommended on his behalf where he expressly stated that he did not want psychological treatment.”
Who is This Guy? – In 19-005040 v Aviva, the Respondent raised a number of concerns as to whether the Applicant’s psychologist actually participated in the assessments as indicated. Specifically, during an earlier Examination Under Oath, when the Applicant was provided a copy of the assessor’s driver’s license photo, his evidence was “I’ve never seen this guy before”. As a result, the Tribunal accepted the premise of the Respondent that the psychologist of record was not involved in any of the Treatment Plans submitted.
Therefore, a plan for psychological treatment was properly approved at the rate of $58.19 per hour, the rate that would be appropriate for a psychotherapist. Further, two Treatment Plans for a psychological assessment and driving anxiety assessment were also awarded at the hourly rate of $58.19, given that there was no evidence of the psychologist’s involvement. In each instance, the Tribunal relied upon the Applicant’s representation that he had never met the psychologist of record.
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