S.H. v. Gore Mutual Insurance Company, 2017 CanLII 93458

S.H. v. Gore Mutual Insurance Company

Date: 2017-12-12

Tribunal File Number: 17-002632/AABS

Case Name: 17-002632 v Gore Mutual Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

S. H.

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Avvy Go

APPEARANCES:

For the Applicant: Louis J. DelSignore Jr., Counsel

For the Respondent: Shelby Chung, Counsel

HEARD in Writing: September 28, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, S.H. was injured in a motor vehicle accident (the accident) on August 8, 2015 where she was a passenger in a vehicle driven by her mother. At the time of the accident, she was 10 years old. She applied to the respondent, Gore Mutual Insurance Company, for insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). As the applicant is a minor, her mother is acting as her litigation guardian.

2The applicant’s claim for a medical benefit was denied by the respondent. The applicant submitted an application to the Licence Appeal Tribunal (the Tribunal).

3A case conference was held by the Tribunal on July 4, 2017. The Tribunal ordered a written hearing.

ISSUES

4Based on the order of the Tribunal dated July 4, 2017, the following are the issues to be decided at the written hearing:

a) Is the applicant entitled to receive a medical benefit in the amount of $1,840.00 for optometric services, recommended by Novus Rehabilitation Limited in a treatment plan dated May 4, 2016, denied by the respondent on May 5, 2016?

b) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant is entitled to:

a) the medical benefit in the amount of $1,840.00 for optometric services, recommended by Novus Rehabilitation Limited in a treatment plan dated May 4, 2016; and

b) interest on the overdue payment of the medical benefit.

THE LAW AND ANALYSIS

6Section 15(1) of the Schedule provides in part that the insurer shall pay for all “reasonable and necessary expenses” incurred by an insured person as a result of the accident for a number of services including optometric services.

7This section will guide me in my analysis below.

Issue 1: Is the applicant entitled to a medical benefit in the amount of $1,840.00 for optometric services, recommended by Novus Rehabilitation Limited in a treatment plan dated May 4, 2016, denied by the respondent on May 5, 2016?

Evidence and Submissions by the Parties

8The applicant’s request for the optometric service is based on a treatment plan prepared by Occupational Therapist Kristen Wood. In the proposed treatment plan, Ms. Wood listed the applicant’s injuries as follow: malaise and fatigue, headache, dizziness and giddiness, sprain and strain of cervical spine, concussion, and pain, not elsewhere classified.

9Ms. Wood also noted that, as a result of the accident, the applicant was experiencing headaches, dizziness, changes to coordination, and challenges with memory, information processing, irritability and moodiness. Among other recommendations, Ms. Wood proposed “vision therapy and home program, and documentation, support activity for claim form”.

10The applicant also asked a Dr. M. Suwala, an optometrist, to conduct a functional oculo-visual assessment of the applicant on February 27, 2016. Dr. Suwala prepared a consultation report dated March 28, 2016 with the following conclusion:

[The applicant] demonstrated a deficiency in basic eye movement skills, in optometry this is referred to as an ocular motor dysfunction. A deficiency in these basic eye movement skills results in the eye working independently and not as a team, resulting in reduced accuracy and efficiency of the visual system. Furthermore, an individualized program of optometric vision therapy is recommended to remediate the visual dysfunctions…..

Both the glasses and vision therapy discussed above have been prescribed as part of [the applicant’s] therapy and are considered medically necessary.

11In its decision refusing the benefit, the respondent stated that the treatment plan for the optometric service was not reasonable and necessary. The respondent relied on an Independent Examination (IE) report dated June 14, 2016 in which the assessor, Dr. Gregory Miller, an optometrist, found no sign of extra ocular muscle paresis or vision-related cranial nerve dysfunction. Dr. Miller opined that the applicant was suffering from a small non-strabismus, binocular vision dysfunction with a slightly inadequate negative fusional reserve, which is a common type of binocular dysfunction, and not as a result of any injury or impairment sustained in the accident. Dr. Miller further opined that the applicant’s visual symptoms could be controlled with spectacle correction and possibly some visual training, and that the applicant should be encouraged to attend her optometrist to seek resolution of her visual deficit. Dr. Miller believed that prognosis was excellent if the spectacles noted were used. Finally, he concluded that the applicant did not suffer any injury or impairment to her eyes, adnexa, or visual system as a result of any injury sustained in the accident.

12The applicant forwarded Dr. Miller’s report to Dr. Suwala for comment, who in turn suggested Dr. Miller review certain medical literature in relation to neuro-ophthalmology of head trauma. Dr. Miller reviewed the article and confirmed his initial opinion.

13By a letter dated July 26, 2016, Dr. Suwala responded to Dr. Miller’s opinion that the applicant’s visual issues were not caused by the accident. Dr. Suwala noted:

It is clear that Dr. Gregory Miller agrees with [the applicant’s] current visual status as per the most recent letter dated June 24, 2016. I have included an excerpt from that letter:

My opinion that [the applicant] has a non-accident related binocular dysfunction as well as myopia and astigmatism, remains sound. My recommendation that [the applicant] follow up with her Optometrist for the resolution of the above is valid.

I had the opportunity to review eye exam findings from October 13, 2013 (Dr. Nestor Bayona Old South Optometry); this exam was performed prior to the car accident and the professional noted a binocular vision system that is within normal limits. Based on this, it is most probably that [the applicant’s] vision changes are related to her car accident.

14The respondent’s IE Dr. Miller then prepared an addendum report dated August 4, 2017. Dr. Miller agreed with Dr. Suwala that his findings were in agreement with that of Dr. Suwala in terms of diagnosis, but he disagreed with Dr. Suwala’s conclusion that the most probable cause of the applicant’s vision changes was related to the accident.

15Dr. Suwala reviewed and commented on Dr. Miller’s Addendum report. In a letter dated August 29, 2017, Dr. Suwala noted:

It is obvious that [the applicant] did not have vision challenges before her accident and now she does. [The applicant] would never have been in my office had it not been for the injuries sustained in the accident. I agree with Greg miller regarding the fact that [the applicant] demonstrated significant improvement in self-reported symptoms at our May 3, 2016 visit, however, Dr. Miller did fail to mention the vision tracking piece. [The applicant’s] eye tracking abilities are below that of a 7 year old; further demonstrating the real world challenges she experiences.

16With that letter, Dr. Suwala also attached a list of medical literature discussing general vision considerations in the acquired brain injury population.

17In addition to the above, the applicant also referred to several other medical reports and evidence indicating that the applicant has acquired a number of visual issues as a result of the accident. These are:

• The record of Dr. Daisy Pavri, the applicant’s paediatrician, the day after the accident, noting that the applicant’s glasses fell off during the accident, and that she was nauseous on and off thereafter;
• Dr. Pavri’s diagnosis of the applicant as having post-concussive syndrome in a follow up visit on January 5, 2016. She noted that the Paediatric Acquired Brain Injury Community Outreach Program had referred her to an eye doctor.

The physiotherapist who treated the applicant noted ocular tracking dysfunction and bouts of dizziness. Objectively, Dr. Pavri noted that the applicant’s balance was off.

• In her progress report dated May 31, 2017, the OT Ms. Wood commented on the applicant’s ongoing symptoms and challenges including visual disturbance, including dizziness when moving her head too quickly, blurry vision, headaches and issues tracking text on a page.

18The respondent, on the other hand, submitted that the applicant has failed to show that her visual issues were caused as a result of the accident. In addition to relying on Dr. Miller’s assessment, the respondent pointed out that prior to the accident the applicant was referred to an optometrist because she was having trouble seeing the board at school. She was given a prescription and warned regarding the possible progression of myopia. The applicant’s concussion was not diagnosed until December 2015 by the physiotherapist. When she was examined by Dr. Pavri on January 5, 2016, her eyes tracked well.

Submissions on the Appropriate Test for Determining Causation

19A key issue in this case is the legal test for determining whether the applicant’s visual challenges are a result of the accident.

20Citing the Supreme Court of Canada’s decision in Resurfice Corp v. Hanke¹, the respondent submitted that the “basic test for determining causation remains the “but for” test and that only in special circumstances has the law recognized exceptions to the basic test and applied the “material contribution” test.

21The respondent also relied on Clements v. Clements², which noted that:

The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry.

22The “but for” test was adopted by the Ontario Court of Appeal in Blake v. Dominion of Canada General Insurance Company³.

23The applicant did not make any submissions on the appropriate test to be applied. I note that in a recent reconsideration decision⁴ by the Executive Chair of the Tribunal, the issue of the appropriate test of causation was raised. However, in that case, based on the evidence, the Executive Chair found that applying either the “but for” test or “material contribution” test, the applicant’s claim must fail. As such, the issue of which test to apply was not dealt with.

Analysis

24For the reasons below, I find that on either the “but for” test, or the “material contribution” test, on a balance of probabilities, the visual issues and related challenges experienced by the applicant are a result of the accident.

25I came to this finding based on the medical evidence before me. I note, first of all, that both Dr. Miller and Dr. Suwala agreed that the applicant is suffering from a number of visual issues including binocular dysfunction. Medical reports before me also confirm that the applicant has a number of other symptoms such as dizziness, problems tracking on a page, and headaches. Moreover, the evidence indicates the challenges the applicant continue to experience at school as reported by the applicant herself and by her mother. Prior to the accident, the applicant was excelling academically and was involved in a number of school activities. After the accident, the applicant has difficulties concentrating and finishing her homework, and her teacher has to help her develop a modified plan to ensure she can finish homework. The applicant’s mother reports her daughter tripping and falling down the stairs at home and at school and having difficulties with balance.

26There is no evidence before me to suggest that the applicant had any of these issues prior to the accident.

27I agree with the applicant that while she did have prescription glasses for vision correction at the time of the accident, there is no evidence to suggest that she was suffering from the “constellation of symptoms” identified by the OT Ms. Wood and by Dr. Suwala.

28I also note Dr. Suwala’s comment that the applicant’s eye tracking abilities are below that of a 7 year old. Again, there is nothing before me to suggest that this issue pre-dated the accident. No other medical reasons have been offered to explain why the applicant is having issues with tracking.

29Irrespective of whether the “but for” test or the “material contribution” should apply, I find on the balance of probabilities, the applicant’s post-accident visual challenges are a result of the accident.

30I find that these challenges cannot be mitigated by prescription glasses alone. The applicant will not be better able to perform eye tracking by simply having a better pair of glasses. The treatment plan proposed by Ms. Wood is for a vision therapy program to be performed by Dr. Suwala. As Dr. Suwala explained in his report of March 28, 2016, the vision therapy program will consist of a 30 minute session once per week; at the progress evaluation, Dr. Suwala will re-assess the situation and decide how much assistance the applicant will require. In addition to the office therapy, home vision therapy will be given.

31Given the visual challenges faced by the applicant as a result of the accident, and adopting a purposive and remedial interpretation of the Schedule, I find the proposed treatment plan both reasonable and necessary.

Issue 2: Is the applicant entitled to interest on any overdue payment of benefits?

32Given my finding on the first issue, I find that the applicant is entitled to interest on any overdue payment of benefit pursuant to s.51 of the Schedule.

ORDER

33The Tribunal finds the applicant is entitled to:

a. the medical benefit in the amount of $1,840.00 for optometric services

b. Interest on the overdue payment of benefit.

Footnotes

1. 1Resurfice Corp v. Hanke (2007), 2007 SCC 7
2. 2Clements v. Clements (2012), 2012 SCC 32
3. 3Blake v. Dominion of Canada General Insurance Co., 2015 ONCA 165, [2015] O.J. No. 1218 (C.A.)
4. 416-000372 v Unica Insurance Inc., 2017 CanLII 35319