Licence Appeal Tribunal
Tribunal File Number: 17-001309/AABS
Case Name: 17-001309 v Aviva Insurance Canada
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:
N.H.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Gemma Harmison
Written submissions by:
For the Applicant: Charles Flaherty, counsel
For the Respondent: Stephen Newell, counsel
Written Hearing: July 24, 2017
OVERVIEW:
1The applicant was involved in a motor vehicle accident on February 5, 2015. She sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).
2The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”), following the respondent’s denial of certain benefits for which she had applied.
3The parties participated in a case conference in April 2017 but they were unable to resolve their dispute. Originally two Treatment and Assessment Plans (OCF-18s) were in dispute, one for physiotherapy services and one for optometric services, and per the case conference order both of the disputed treatment plans – along with the issue of interest - were to be decided at this written hearing. After the case conference and before the written hearing date, the Tribunal received correspondence from applicant counsel’s office confirming that the disputed OCF-18 for physiotherapy services had been resolved and was no longer in dispute.
4The remaining OCF-18 for optometric services remains in dispute. The respondent denied the OCF-18 for optometric services on the basis that the proposed treatment was not reasonable and necessary.
5It is the position of the applicant that the proposed optometric services are reasonable and necessary, and that medical records and other documents included in her evidence for the hearing supports her position. The respondent asserts that the applicant is not entitled to the disputed optometric services for two reasons. First, it contends that the applicant’s claim for the disputed optometric services should be dismissed outright because the applicant did not submit a copy of the OCF-18 in her evidence for the hearing. Alternatively, the respondent argues that the proposed optometric services are not reasonable and necessary, relying on the conclusions and opinion of its Insurer Examination (IE) assessor.
ISSUES TO BE DECIDED:
6Based on my review of the case conference order, the correspondence received after the issuance of the case conference order, and the submissions of the parties, I have determined that the issues to be decided at this hearing are as follows:
i Is the applicant entitled to receive a medical benefit in the amount of $6,080.00 for optometric services, recommended by optometrist Dr. Shirley Ha in a treatment plan submitted on June 13, 2016, denied by the respondent on September 19, 2016?
ii Is the applicant entitled to interest on any overdue payment of benefits?
iii Is the applicant entitled to costs of the proceeding?
RESULT:
7For reasons set out below, I find that:
i The applicant is not entitled to receive a medical benefit for optometric services in the amount of $6,080.00;
ii Since no benefit is ordered payable, the applicant is not entitled to interest;
iii The applicant is not entitled to costs of the proceeding.
BACKGROUND:
8The applicant was driving her vehicle when another vehicle struck her vehicle on the front passenger side.
9Following the accident, the applicant attended appointments with her family physician, Dr. Blew, who diagnosed the applicant with a concussion and post-concussion syndrome. Dr. Blew referred the applicant to a neurologist, Dr. Rathbone who agreed the applicant presented with various features of post-concussion syndrome and who in turn referred the applicant to Dr. Robertson, a neuro-otologist, and also to Dr. Velikonja, a neuropsychologist at a concussion clinic. Dr. Robertson concluded that the applicant demonstrated evidence of uncompensated right peripheral vestibulopathy and intermittent benign paroxysmal positional vertigo.
10The applicant was referred for physiotherapy incorporating vestibular and vision exercises, which has been funded by the respondent.
ANALYSIS AND DECISION:
Is the applicant entitled to the services recommended in the disputed treatment plan?
11The applicant bears the onus of proving, on a balance of probabilities, that the proposed optometric services are reasonable and necessary. I find that she has failed to meet that onus for the following reasons.
12First, the applicant did not submit in her evidence for the hearing the OCF-18 prepared by Dr. Shirley Ha that is in dispute. The respondent argues that the applicant’s failure to submit the OCF-18 as evidence warrants the dismissal of her claim outright given the “well established criteria in the jurisprudence” that a trier of fact is to consider when determining whether treatment is reasonable and necessary. The respondent pointed me to arbitral decisions1 of the Financial Services Commission of Ontario (FSCO) outlining the criteria used by FSCO arbitrators when determining whether treatment is reasonable and necessary. While FSCO decisions are not binding on me, I find the criteria set out in those decisions to be reasonable and I adopt the same criteria, of which, notably, include that:
The treatment goals must be identified, the goals must be reasonable and should be met to a reasonable degree.
The treatment should be appropriate to the goals and to the person.
13Given the above, the OCF-18 is, in my view, of vital importance in determining whether the proposed services are reasonable and necessary. When completing the OCF-18, Dr. Ha would have been asked to identify the goals of the proposed treatment, how the treatment will achieve those goals, and how the identified goals would be evaluated.
14I find the applicant’s failure to submit the OCF-18 in her evidence for this hearing has deprived me of the ability to fully and properly assess the reasonableness and necessity of the disputed treatment plan, and accordingly find she has not met her onus of proving the treatment plan is reasonable and necessary.
15Second, even if I am incorrect in my analysis that the applicant’s failure to submit the OCF-18, alone, is grounds to deny her entitlement to the disputed treatment plan, I would have denied her claim in any event. Having reviewed the parties’ submissions, including the evidence the applicant did submit for the hearing, I find she has not otherwise proven that the disputed treatment plan is reasonable and necessary.
16The applicant submitted as evidence a Neuro-Optometric Case Presentation prepared by Dr. Ha who conducted a functional vision evaluation of the applicant on April 19, 2016. The applicant also submitted as evidence a letter prepared by Dr. Ha dated May 2, 2016. Neither of those documents, in my opinion, clearly or adequately identify the goals of the proposed treatment, how the treatment would achieve those goals, or how the goals would be evaluated. Those documents do not, in my view, convey sufficient information or particulars to meet the criteria for establishing that the treatment is reasonable and necessary, nor do those documents in my opinion rectify or remedy the applicant’s failure to submit the disputed OCF-18 as evidence.
17The applicant submitted as evidence consultation reports of her specialists Dr. Rathbone (neurologist), Dr. Robertson (neuro-otologist) and Dr. Velikonja (neuropsychologist). Dr. Velikonja recommended “physical therapy focusing on vestibular exercises and vision exercises”. Dr. Robertson similarly recommended “vestibular physiotherapy and balance retraining”. Records from Ross Rehabilitation confirm that the applicant’s physiotherapy treatment at that facility included vision exercises/vision therapy (oculomotor therapy). The most recent report from Ross Rehabilitation, dated January 31, 2017, indicates that the applicant had attended another follow-up appointment with Dr. Rathbone who recommended that she attend vestibular physiotherapy at Better Balance Physiotherapy. Therefore it appears there was consensus between Drs. Velikonja, Robertson and Rathbone as to the type of treatment recommended for the applicant, and the applicant acknowledges that the respondent has funded her vestibular and vision therapy at Ross Rehabilitation and Better Balance Physiotherapy2. Based on my review, none of those three specialists recommended the type of optometric therapy services practiced by Dr. Ha.
18The evidence submitted by the applicant shows that she was additionally referred to a neuro-ophthalmologist, Dr. Rodriguez, however the applicant did not include in her evidence any reports or records from Dr. Rodriguez to indicate what diagnoses may have been made by Dr. Rodriguez or what treatment recommendations may have been made by Dr. Rodriguez beyond that which had been recommended by the applicant’s other specialists. It appears it was Cheryl Wylie, physiotherapist at Ross Rehabilitation, who referred the applicant to Dr. Ha, as per a letter Ms. Wylie sent to the applicant’s family physician Dr. Blew. In that letter, Ms. Wylie queried whether the referral should be done in conjunction with Dr. Rodriguez and/or to wait to make the referral until the applicant saw Dr. Rodriguez. In the absence of any records from Dr. Rodriguez, I am unable to determine whether Dr. Rodriguez supported the referral to Dr. Ha, recommended the type of treatment practiced by Dr. Ha or otherwise believed that such treatment would be of benefit to the applicant. I find the absence of any reports or records from the applicant’s neuro-ophthalmologist Dr. Rodriguez to be of note, particularly since, per below, the applicant disputes the conclusions and opinion of the respondent’s neuro-ophthalmology assessor.
19The respondent’s IE assessor, Dr. Ranalli, reviewed the disputed OCF-18 prepared by Dr. Ha. Dr. Ranalli’s neuro-ophthalmology paper review report and paper review addendum report concluded that the proposed treatment was not reasonable and necessary. Dr. Ranalli opined, among other things, that the OCF-18 completed by Dr. Ha described vague visual symptoms, that the nature of the proposed treatment sessions was also vaguely described, and that the “type of ‘vision therapy’ practiced by certain optometrists is unvalidated in this clinical setting.” The applicant contends that Dr. Ranalli’s conclusion and opinions are flawed and to counter those opinions has submitted in her evidence various website printouts and other documents from optometry or vision associations or institutes outlining general information about vision or neuro-optometric therapy, and/or counter positions as to the validity of certain conditions disputed by Dr. Ranalli. That evidence does not however, in my opinion, supplant or remedy the missing OCF-18 in the applicant’s evidence from Dr. Ha, or the other documents of Dr. Ha that were submitted as evidence which, as above, I found to be insufficient to remedy the absence of the disputed OCF-18.
20My task is to decide whether the treatment proposed by Dr. Ha is reasonable and necessary for this applicant. In my opinion, that analysis centers primarily on a review of the treatment plan itself, which is not in evidence before me. I am also not persuaded that the evidence the applicant otherwise did provide rectifies or remedies the absence of the OCF-18.
21For all of the foregoing reasons, I find that the applicant has failed to meet her onus of proving the disputed treatment plan is reasonable and necessary.
22Since I have found that no benefit is ordered payable, the applicant is not entitled to interest.
Is the applicant entitled to costs of the proceeding?
23Rule 19.1 of the Tribunal’s Rules of Practice and Procedure (“Rules”) provides that a party may make a request to the Tribunal for costs where it believes another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith [emphasis added]. Rule 2.17 of the Rules defines a “proceeding” as being “the entire Tribunal process from the start of an appeal to the time the matter is finally resolved”.
24The applicant’s written submissions on the issue of costs refers to alleged conduct by the respondent prior to the Tribunal’s proceeding while assessing and adjusting the applicant’s accident benefits file. The applicant has provided no submissions as to any alleged conduct by the respondent in the Tribunal’s proceeding which would warrant an order of costs.
CONCLUSION:
25For the reasons set out above, I find that:
i The applicant is not entitled to receive a medical benefit for optometric services in the amount of $6,080.00;
ii Since no benefit is ordered payable, the applicant is not entitled to interest;
iii The applicant is not entitled to costs of the proceeding.
Released: January 30, 2018
Gemma Harmison, Adjudicator