Rhona L. Waxman Law Offices - Hamilton Personal Injury Lawyer & Accident Attorney
25 Main Street West, Suite 700
Hamilton, Ontario, Canada, L8P 1H1
Telephone: 905.540.5555 - Fax: 905.540.4641
Arbitration and Court Decisions Relevant to Psychological Impairments and the Worker's Psychologist:
ONTARIO PSYCHOLOGICAL ASSOCIATION - FEB 2ND, 2007
Presented to: Ontario Psychological Association
Prepared by: Rhona L. Waxman Law Offices
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THE ROLE OF THE CLINICAL PSYCHOLOGICAL ASSESSMENT IN THE CLIENT’S CLAIM FOR OTHER BENEFITS
The clinical psychological assessment can have a major impact on your client’s entitlement to other accident benefits. It can impact on their right to income replacement benefits, housekeeping, caregiver benefits, attendant care and to catastrophic designation for impairment. So if it is your opinion that your client can’t work or that his or her ability is impaired as a result of the psychological problems or impairments then you should say so in your report.
If the conditions for which you are treating or assessing the person, impacts on their ability to do housekeeping or to care for their children or to care for themselves, then this is also something that you should mention. You should also be aware of the possibility that the person might be entitled to catastrophic designation and if you note a Glasgow Coma Scale of 9 or lower or a combination of multiple injuries, then you should put that in your report and suggest the possibility that the issue of catastrophic impairment should be examined.
Please bear with me as I refer to one more case on this issue and that is the Kieffer v. Economical Mutual Insurance Company [2006 O.F.S.C.D. No. 65, File No. FSCO A05-0000494]. Under Bill 198, accident victims who are diagnosed as having Wad I or Wad II injuries are subject to treatment with prescribed scope and duration. Their access to other benefits such as income replacement benefits, housekeeping and attendant care is also circumscribed. Their treatment under the path for a Wad I injury usually lasts up to 28 days and for a Wad II injury up to six weeks.
For accidents after April 14, 2006, income replacement benefits are not paid for longer than 12 weeks for a person who falls within Wad I or after sixteen weeks for a person who falls under Wad II.
The Kieffer case involved a motor vehicle accident that occurred on July 4, 2004. Ms. Kieffer was diagnosed with Wad II and was processed under the Paf. She had headaches, neck and low back pain, anxiety and loss of sleep. She applied for and received income replacement benefits and medical and rehab treatment under the Paf.
The treatment provided under the Paf was unsuccessful and her diagnosis was expanded to include psychological impairments. Ms. Kieffer’s treating medical practitioners submitted another Treatment Plan outside of the Paf proposing further treatment, actually it was psychological treatment and Ms. Kieffer also applied for additional income replacement benefits.
The insurer took the position: once a Paf always a Paf.
Ms. Kieffer argued that although she initially suffered a Wad II injury, her impairments now fell outside the Wad II Paf. She argued that her chronic pain and psychological impairments were distinct from and brought her outside of the Wad II Paf and that she required separate and additional treatment than what was provided under the Path.
The arbitrator found that a person who suffers a Wad II injury can be excluded from the Paf if the person has developed other significant impairments distinct from the Wad II injuries arising from the same accident, and in this case, the arbitrator was satisfied on the balance of probability that Ms. Kieffer suffered a psychological impairment as a result of the crash. Since the impairment no longer came under the Wad II Paf, the restrictions in the SABS did not apply and accordingly Ms. Kieffer could receive income replacement benefits for more than sixteen weeks and could receive treatment outside of the Paf. In this particular case, Ms Kieffer’s psychological assessment put her outside the Paf and entitled to her to ongoing income replacement benefits and treatment.
WHAT YOU CAN DO TO HELP GET YOUR TREATMENT PLANS APPROVED:
- First do your assessments and Treatment Plans in a timely fashion after the assessment has been approved.
- For a great many reasons, Treatment Plans put in closer to the time of the accident are more likely to be approved than the ones later.
- Follow your best clinical practice. That goes without saying. Emphasize the testing that you have done and the test results. Adjusters are impressed by testing and test results.
- Make sure you have the complete medical file and insurance file prior to preparing your Treatment Plan. As an absolute, you want the family doctor’s clinical notes and records pre-existing the accident up until the date you are seeing the person and as many other reports, IE’s and medical information as you can get your hands on.
- You will often find support for the treatment that you are recommending in other people’s reports. You should point that out and emphasize it. If for example the physiatrist notes that the patient is being affected by mood or is afraid to go back to work or is tearful when describing the accident; Or if he notes that the patient is complaining of problems with their spouse or children, or that the children don’t understand or are not supportive, you may want to put observations such as these in your treatment plan, assessment or report.
- Emphasize the possible benefits and what you think could be achieved by the proposed treatment. However, do not guarantee or proclaim that you will provide a cure. For example if it is your opinion that the clients depression will have to be dealt with prior to his being able to return to work, that is not a bad thing to say. It will help you get your treatment approved.
- In your first Treatment Plan do not ask for a lot of sessions. Adjusters often look at treatment in a cost benefit way. They look at how much the treatment is going to cost, what the potential benefit would be and how much it would be to dispute it. Also, some insurance adjusters only have limited authority and can only approve Treatment Plans up to a certain amount of money. After the initial treatment plan you are in a much better position to assess the needs of the client and your report and recommendations would carry more weight.
- Be very careful when quoting the clients in the report.
- Lastly, and most importantly, always do a rebuttal report when requested. After you do your assessment and Treatment Plan, the insurer can obtain an insurer examination which it can use to deny the treatment that you are recommending. You then have a certain period of time to do a rebuttal report. If you don’t do the rebuttal report, you are guaranteeing that the Treatment Plan will not be approved. The implication will be that you were swayed by the IE and you agreed with the IE assessor. This puts the client in a difficult position at mediation and arbitration.