Licence Appeal Tribunal

Citation: Way v. Aviva General Insurance, 2021 ONLAT 20-000208/AABS

Licence Appeal File Number: 20-000208/AABS

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

Between:

Don Way Applicant

and

Aviva General Insurance Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: Gordon Harris, Counsel

For the Respondent: Nisaa Khan, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1The applicant was involved in an automobile accident on September 28, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹ The applicant was denied certain benefits by the respondent and, as a result, he submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2A case conference was held on June 5, 2020, and the matter proceeded to a written hearing.

ISSUES TO BE DECIDED

3The issues to be decided are:

(i) Is the applicant entitled to an attendant care benefit (“ACB”) in the amount of $2,130.34 per month from December 22, 2017 to date and ongoing?

(ii) Is the applicant entitled to $5,241.00 for vision therapy and glasses recommended in a treatment plan (“OCF-18”) submitted on December 19, 2018, and denied on January 17, 2019?

(iii) Is the applicant entitled to interest on overdue payment of benefits?

(iv) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULTS

4The applicant is not entitled to ACBs or to $5,241.00 for vision therapy and glasses. The applicant is also not entitled to interest or to an award, and the application is dismissed.

BACKGROUND

5The applicant was involved in an accident on September 28, 2017. He was working at the time of the accident as a shuttle Bus driver for Air Bus. The applicant claims that he cannot return to work because of pain fatigue, reduced tolerance, and his worsening cognitive and emotional status.

6After the accident, the applicant was taken to the hospital where he was diagnosed with a concussion.² The applicant saw his family doctor, Dr. C. Burkhart, on October 19, 2017. At this visit, Dr. Burkhart opined that the applicant was suffering from post-traumatic stress syndrome, numbness and tingling in his hands and feet, headaches, and difficulty with concentration.³

7The applicant saw Joanne Nunn, occupational therapist, on December 27, 2019. Ms. Nunn reported that the applicant was experiencing headaches, dizziness, vision difficulties, neck and back pain, fatigue, and irritability.⁴ Ms. Nunn recommended attendant care for the applicant. Ms. Nunn prepared a progress report on July 27, 2020 indicating that the applicant’s symptoms continued.⁵

8Following a s. 44 examination of the applicant on October 16, 2018, Dr. Friesen, neurologist, found no indication that the applicant suffered a concussion or from post-concussion syndrome. Dr. Friesen also found no evidence of a neuropsychological/cognitive impairment.⁶ Dr. McLachlan, neurologist, also came to the same conclusion as Dr. Friesen following his s. 44 examination of the applicant on February 9, 2018.⁷

9The applicant saw Dr. Burkhart on January 18, 2018, March 2, 2018, September 20, 2018, and in December 2018 where the applicant still reported pain in his neck and left shoulder, headaches, short term memory issues, bilateral ear tenderness, and dizziness.⁸ The applicant saw Dr. Miller, psychologist, on December 10, 2018, who diagnosed him with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (driving).⁹

10Dr. Meikle, specialist in physical and rehabilitation medicine, completed an electrodiagnostic consultation on August 7, 2018. Dr. Meikle concluded that the applicant sustained soft tissue injuries which precipitated chronic myofascial pain.¹⁰ Dr. Meikle recommended that the applicant return to physical activities.

11Ms. Tandon, occupational therapist, on a s. 44 IE saw the applicant on June 12, 2018. Her report indicates that: the applicant reported he was independent with self care tasks and with sitting, standing, walking, climbing stairs, kneeling, and reaching; the applicant demonstrated functional AROM strength in all areas and that there was no observed or reported limitations; the applicant had no balance-related impairments, no difficulties hearing or feeding himself; and the applicant’s functions of attention and memory were intact.¹¹

12Dr. Taylor, orthopaedic surgeon, on a s. 44 examination on June 12, 2018, reported that the applicant advised him that he was independent with personal care. Dr. Taylor found no objective findings of ongoing musculoskeletal impairment.¹²

13The London Health Science records dated September 18, 2018, noted no change in the head MRI from pre- accident to post-accident, and noted that the applicant’s scan on the day following the accident was normal.

14Dr. C. Allen, optometrist on a s. 44 examination for an Optometry Assessment on June 5, 2019,¹³ found that the applicant had a normal exam and no ophthalmic sequela as a result of the accident. Dr. Allen opined that the benefits sought were not necessary and reasonable.

15On December 4, 2019, the applicant saw Dr. Jones optometrist, who diagnosed the applicant with post-trauma vision syndrome.¹⁴ She reported that the applicant was unable to drive at night and had problems adjusting to lighting conditions, in addition to daily headaches.

16On March 11, 2020, the applicant was assessed by the DeGroote Pain Clinic which diagnosed him with generalized anxiety disorder, persistent depressive disorder, persistent major depressive episodes, and somatic symptom disorder with predominant pain.¹⁵ The applicant reported to the clinic that he was independent with his self-care including bathing, toileting, and changing clothes.

ANALYSIS

Is the applicant entitled to ACBs in the amount of $2,130.34 per month from December 22, 2017 to date and ongoing?

17I find that the applicant is not entitled to an ACB for the reasons set out below.

18Section 19 of the Schedule provides for ACBs to be provided for all reasonable and necessary expenses. Section 20(1) of the Schedule limits payment of ACBs up to 260 weeks after the accident unless the insured person suffers a catastrophic impairment. Section 3(7)(e) sets out the following requirements for an expense to be considered “incurred:”

(i) the insured person has received the goods or services to which the expense relates;

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense; and

(iii) the person who provided the goods or services:

(a) did so in the course of the employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident; or

(b) sustained an economic loss as a result of providing the goods or services to the insured person.

19Section 3(8) of the Schedule permits the Tribunal to deem an expense incurred, if the insurer has unreasonably withheld or delayed payment of ACBs.

20The applicant’s position is that his family and his daughter’s family were required to help provide attendant care services and, therefore, his ACB expenses should be deemed incurred on the basis that the respondent withheld ACBs from the applicant.

21The respondent’s position is that the applicant has not shown that ACBs are reasonable and necessary. The respondent relies on the reports of Ms. Tandon, Dr. Taylor, and the DeGroote Pain Clinic, in which the applicant admitted that he was independent with his self-care. The respondent also relies on the reports of Dr. Friesen, Dr. McLachlan, and Dr. Miller, which all indicate that the applicant has no neurological or cognitive impairment that would require ACBs.

22The respondent also asks the Tribunal to put little weight on Ms. Nunn’s report for the following reasons:

(i) Most of her report is the self-reporting of the applicant;

(ii) The report provided no supporting explanation for its conclusions;

(iii) Ms. Nunn conducted a “brief physical assessment” of the applicant, as stated in her report, whereas the other reports (Ms. Tandon, Dr. Taylor, and the DeGroote Pain Clinic report) were based on an extensive interview and an objective examination. There is also no mention in Ms. Nunn’s report observing the personal tasks set out in Form 1 that she prepared; and

(iv) The applicant’s self-reports of being independent with his self-care made to other assessors as set out in paragraph [20] contradicts Ms. Nunn’s findings.

23The respondent also argues that even if the applicant is entitled to ACBs, he has not provided proof of incurred expenses as required under s. 3(7) (e)(iii)(a) and s. 19(1)(3) of the Schedule. The respondent also submits that the applicant provided no evidence that shows economic loss by the family members who supposedly provided him with attendant care services.

24On the evidence before me, I give the most weight to the appicant's reporting of his self-care independent to Ms. Tandon, Dr. Taylor, and the DeGroote Pain Clinic, as the applicant reported three seperate times to three independent assessors that he was independent with his self-care.

25I find that the applicant’s reporting as to his own self-care independence to Ms. Tandon, Dr. Taylor, and the DeGroote Pain Clinic, should be given the most weight. I agree with the respondent’s position as to the evidence of Ms. Nunn and the reasons set out in paragraph [21] as to why not much weight should be given to her evidence. Her report is also contradicted by the applicant’s own reporting of his independence with his self care. The reports of Dr. Friesen, Dr. McLachlan, and Dr. Miller indicate that the applicant has no neurological or cognitive impairment such that ACBs would be required. These reports are not contradicted and occurred later than the hospital’s finding of a concussion.

26Based on the above, I find that the applicant has not met his onus of proving on a balance of probabilities that attendant care benefits are reasonable and necessary. Section 3(8) of the Schedule permits the Tribunal to deem an expense incurred if the insurer has unreasonably withheld or delayed payment of ACBs. I find that the insurer has not unreasonably withheld or delayed payment of ACBs.

27Even if I am incorrect in this finding, I also agree with the respondent’s position that the applicant has provided no evidence of an economic loss to the family members that provided care to the applicant, as required by the Schedule such that ACBs would be payable, if they were found reasonable and necessary.

Is the applicant entitled to $5,241.00 for vision therapy and glasses recommended in a treatment plan submitted on December 19, 2018, and denied on January 17, 2019?

28I find that the applicant is not entitled to any benefit for vision therapy and glasses for the reasons set out below.

29Section 15 of the Schedule requires all medical benefits incurred by the insured to be reasonable and necessary expenses.

30The applicant submits that Dr. Jones on December 4, 2019 saw the applicant and diagnosed him with visual disturbances, a concussion, post traumatic syndrome and other disorders of binocular movement which affected his driving and adjusting between light conditions. The applicant relies upon these diagnoses and difficulties in support of his position that the vision therapy and glasses are reasonable and necessary.

31The respondent submits that I should give little weight to Dr. Jones’ report, as it failed to explain how the assessment led to the recommendations for vison therapy and glasses. Dr. Jones also diagnosed a concussion as a result of the accident, which is inconsistent with other evidence before me, such as the findings of Dr. Friesen, Dr. McLachlan, Dr. Miller, and the September 20, 2018 London Health Sciences Record, which all found that the applicant did not sustain a concussion.

32The respondent also relies on the report of Dr. Allen dated June 5, 2019, in which Dr. Allen opines that the vision therapy and glasses are not reasonable and necessary. Dr. Allen did not observe any light sensitivity during his examination of the applicant and found the applicant’s examination was normal for his age. Dr. Allen also found no impairment from an ophthalmic point of view related to the accident, and made no recommendations for ongoing treatment.

33The respondent also relies on the records of Saugeen Shores hospital dated April 6, 2018.¹⁶ These records show no accident-related impairment and made no recommendations for vision therapy or for tinted glasses.

34I find that the evidence against any cognitive impairment is overwhelming in the reports and records of Dr. Friesen, Dr. McLachlan, Dr. Miller, and the London Health Sciences Record. I agree with the respondent’s position on Dr. Jones’ report, as there is no detailed analysis as to how the assessment led to the conclusion of a concussion and the need for vision therapy and glasses. I therefore place more weight on the reports and records of Dr. Friesen, Dr. McLachlan, Dr. Miller, and the London Health Sciences Record. Dr. Jones’ opinion is inconsistent with the other evidence before me.

34I find that the applicant has failed to prove on a balance of probabilities that the proposed vision therapy and glasses are reasonable and necessary.

Interest

35As there are no benefits owing, no interest is payable.

Award

36Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

37As I have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

CONCLUSION

38For the reasons set out above, the application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Kincardine Hospital records
3. 3Report of Dr. Burkhart dated October 19, 2017, Tab 2. Applicant’s Brief of Documents
4. 4Report of Joanne Nunn dated December 27, 207, Applicant’s Brief of Documents Tab 3.
5. 5Occupational Therapy Progress Report Ms. Nunn dated July 27, 2020, Applicant’s Brief of Documents Tab 4.
6. 6Neuropsychological Report dated October 16, 2018, Applicant’s Brief of Documents Tab 8.
7. 7Neurology Report dated June 12, 2018, Applicant’s Brief of Documents Tab 11.
8. 8Report of Dr. Burkhart, Applicant’s Brief of Documents Tabs 5 and 7.
9. 9Mental Health Assessment Report Dr. Miller, Applicant’s Brief of Documents Tab 6.
10. 10Ibid. at p3.
11. 11In home Assessment Report Dated June 12, 2018, Respondent’s Brief of Documents Tab 7.
12. 12Orthopaedic Report dated June 12, 2018, Respondent’s Brief of Documents Tab 7.
13. 13Ophthalmology Report dated June 5, 2019, Respondent’s Brief of Documents Tab 8.
14. 14Grey Highlands Eye Care Report dated December 4, 2019, Applicant’s Brief of Documents Tab 8.
15. 15Interdisciplinary Initial assessment, Respondent’s Brief of Documents Tab 9, p19.
16. 16Clinical Notes and Records of Saugeen Shores dated April 6, 2018, Tab 15.