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Volume. 4 Issue. 12 – March 25, 2020

The ‘Kitty CAT Corner’ Cont’d

In the first case reported on by the LAT that deals with the 10 year cap on medical benefits, the Applicant, injured in a 2007 accident received ongoing treatment for her psychological impairments from 2009 to 2017.

Despite the treatment, her psychological impairments had not resolved, with her treating psychologist confirming that the accident and its consequences produced a long-lasting, negative effect on her. In order to receive benefits beyond the 10 year mark, the Applicant sought a CAT determination and a claim for retroactive ACB for 10+ years

CAT Indeed, and 10+ Years Retro ACB – In 18-000605 v State Farm, the Tribunal addressed the Applicant’s current psychological status, with both assessors providing a diagnosis of Major Depressive Disorder. However, the Applicant’s assessor opined it was in the moderate to severe range, a Class 4 Marked impairment in the domain of Activities of Daily Living (“ADL”) while the Respondent’s assessor opined it was a mild to moderate range, a Class 3 Moderate impairment in “ADL”. The Tribunal found “this difference to be significant as the applicant had received extensive psychiatric and psychological treatment from 2009 to 2017.”

Further, it was found that the Applicant’s medical records confirmed that since 2016 her psychological status was deteriorating, noting that the treating psychologist was providing decreasing GAF scores over time “which supports that the applicant’s self-reported psychological symptoms and impairments resulted in a decrease in functioning over time.”

The Tribunal also preferred the Applicant’s OT report, finding it more thorough as it conducted testing which took 7 hours over a period of two days, whereas the Respondent’s was conducted in under 3½ hours. It was found that the Respondent’s report “relied more heavily on…self-reporting and results from questionnaires administered.” In addition, the fact of being “able to observe the applicant performing the functional activities with relatively little difficulty persuades me that these tasks did not challenge the applicant in areas she has difficulty with…”. Given the above, the Tribunal found that the Applicant’s impairment levels significantly impede useful functioning in Activities of Daily Living, resulting in a Class 4 Marked impairment in this domain.

The Tribunal also considered the Applicant’s claim for retroactive ACB at the rate of $1,762.52 from October 19, 2009 to date and ongoing. Both parties agreed that the 2010 definition of “incurred” did not apply, with no “need to actually receive the item or services claimed in order to be entitled to the expense. It is sufficient that the reasonableness and necessity of the service be established, and that the amount of the expenditure can be established with certainty.”

ACB was ultimately awarded from October 19, 2009 to date and ongoing at the rate of $507.03 monthly. However, the Applicant was only entitled to interest from the date of the Form 1 submission in February of 2017.

This case suggests that claims approaching either the ten year or now five year cap on medical benefits may need further ongoing consideration if the prospect of further treatment is in evidence.

Degrees of LATitude – Prevailing Rates?

Are psychotherapists entitled to the same hourly rate as a psychologist? While the rate at which a psychotherapist is compensated may well be very fact specific, the following cases demonstrate an inconsistent application of guiding principles from the LAT.

Why is the Rate Different? – In 18-012238 v Aviva, the Tribunal noted that “The issue in this application appears to be what rate can be charged by a Psychotherapist, while under the supervision of a Psychologist?” The Tribunal noted that “The issue of what rate is to be applied towards Psychotherapists has already been adjudicated by the Tribunal”. However, in the case cited 18-006097 v Aviva, the Tribunal on Reconsideration confirmed that “this plan only proposed psychologists’ services and was approved only on that basis. Because psychotherapist services were never contemplated and in dispute under this plan, the Tribunal lacks authority to address the proper rate in this case.”

However, in the case at hand, the Tribunal found “Both Psychologists and Psychotherapists provide the same cognitive behaviour therapy. If they are providing the same cognitive behaviour therapy services, why is the rate different? I find that the hourly rates should be the same for the same services provided. I find that the applicant’s Psychotherapist should be paid at the rate of $149.61 per hour for the work completed.”

We have also reported earlier on a case, 18-007991 v Intact, where a psychotherapist was found entitled to the same $149.61 hourly rate, as “she would be paid for providing cognitive behaviour therapy which she has specialized training and expertise in. It does not allow her to be paid for any service provided by a psychologist, or a psychological associate that she is not qualified to provide.”

Misleading Provider – In contrast to the above matter, in 18-011393 v Aviva, the Tribunal ordered the Respondent to pay for the disputed psychological assessment due to insufficient notice, given the failure to provide medical reasons and to provide a clear and unequivocal denial. Notwithstanding this finding, the Tribunal found, “The psychotherapist is not entitled to the same fee as the psychologist.” Contrary to 18-007991 v Intact, the Applicant in this case submitted a plan for cognitive behaviour therapy provided by a registered psychologist and not by any other provider. “In effect, [the psychologist] has misled the respondent by substituting a different service provider despite being advised that doing so could result in payment at the lower hourly rate. As a result, the applicant is only entitled to payment at the lesser rate of $58.19 per hour.”

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