Tribunal File Number: 17-003087/AABS
Case Name: 17-003087 v Peel 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:
Applicant
Applicant
and
Peel Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Kimberly Parish
APPEARANCES:
Counsel for the applicant: Baldeep Virk
Counsel for the respondent: Svet Ivnov
Heard In Writing: September 28, 2017
OVERVIEW
1The applicant was injured in an automobile accident on April 3, 2015 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent denied the applicant’s claim. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The disputed claims in this hearing are:
(i) Is the applicant entitled to receive a medical benefit in the amount of $1,276.55 ($3,595.35 less partially approved amount $2,318.80) for multi-physical therapy (including acupuncture, physiotherapy, massage therapy, and assistive devices) pursuant to a treatment plan, submitted by Happy Wellness on June 29, 2015 and denied on August 15, 2015?
(ii) Is the applicant entitled to receive a medical/rehabilitation benefit in the amount of $2,382.00 towards the cost of online classes in Bachelor of Health Administration course pursuant to a treatment plan (OCF-18) completed by PiOT, submitted on December 2, 2015 and denied on December 24, 2015?
(iii) Is the applicant entitled to receive a medical benefit in the amount of $4,200.00 for optometric vision therapy pursuant to a treatment plan (OCF-18) completed by Dr. Daniel Rayman, submitted on October 26, 2016 and denied on October 26, 2016?
(iv) Is the applicant entitled to receive a medical benefit in the amount of $570.00 ($582.43 less partially approved amount $12.43) for reading glasses pursuant to a treatment plan (OCF-18) completed by Unique Vision Centre, denied on November 17, 2016?
(v) Is the applicant entitled to receive the cost of moving in the amount of $1,089.23 pursuant to an expense claim form (OCF-6) denied on November 4, 2015?
(vi) Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
3I find the applicant is not entitled to the medical/rehabilitation benefits in dispute for the physical therapy and the online classes as the applicant has not demonstrated they are reasonable and necessary. The applicant has also not demonstrated that the treatment plans for the optometric vision therapy, the eye examination and eyeglasses are linked to the subject motor vehicle accident; therefore these treatment plans are not payable. The OCF-6 for the moving expenses is not payable in accordance with the Schedule.
4The applicant is also not entitled to interest.
ANALYSIS
5Entitlement to medical and rehabilitation benefits is determined under ss.15 and 16 of the Schedule. The onus is on the applicant to demonstrate on a balance of probabilities that the medical and rehabilitation benefits proposed are reasonable and necessary as a result of injuries sustained by the subject motor vehicle accident (“accident.”)
(i) Physical Therapy
6I find the applicant has not demonstrated that the proposed treatment plan is reasonable and necessary for treatment of the applicant’s impairments for the following reasons.
7The respondent partially approved this plan for eight physiotherapy sessions totalling $798.00. The respondent denied $1,276.55 pending the outcome of a section 44 insurer’s examination (“IE”) This amount remains in dispute.
8The applicant relied on the consultation report of Dr. Q. Chivers, Plastic Surgeon, who saw the applicant on June 2, 2015. Dr. Chivers addressed paresthesias in the median nerve of the applicant’s right hand caused by embedded glass from the accident.
9The applicant attended a section 44 IE with Dr. D. Milne, Chiropractor on August 11, 2015 and a report was issued. Dr. Milne recommended a further partial approval of the plan in the amount of $1,520.80. The respondent notified the applicant on August 31, 2015 of the additional approved amount but maintained their denial on the balance of the proposed treatment.
10The respondent submitted the assistive devices proposed in the treatment plan provided no description of the exercise equipment, brand, or cost from a reputable medical supplier. The respondent submitted the amounts proposed by Dr. Milne for the assistive devices were within the fees outlined by AGTA Homecare, a respected medical supplier. Further, the respondent submitted Dr. Milne proposed massage therapy at a rate of $29.10 per 30 minutes as per the Professional Services Guidelines (FSCO September 2014.) It is the respondent’s submission that the applicant has not provided evidence which supports the additional hours for physiotherapy and massage beyond amounts approved by Dr. Milne.
11Through its submissions, the respondent referenced Dr. Milne’s report which stated: “At this point in time, considering her good shoulder, neck and lower back ROM [sic] I would not recommend that she continue with passive chiropractic therapy of manipulation. Additionally, there is no further indication for acupuncture notwithstanding that she expressed no desire to continue this form of treatment.”
12The applicant submitted the respondent has not demonstrated where the applicant can obtain massage therapy at the rates proposed by Dr. Milne and the lower cost assistive devices proposed by the respondent does not guarantee the assistive devices are of the same quality as what was proposed within the OCF-18.
13The applicant incurred out of pocket expenses in the amount of $1,080.25 for physiotherapy, massage, and acupuncture from Body in Balance Physiotherapy in January 2016. The applicant submitted she received injection therapy to her right wrist on two occasions and underwent surgery on her right wrist to relieve numbness on August 10, 2015. The applicant noted the unapproved amount of $1,265.65 in dispute is mainly for acupuncture to reduce the symptoms in the applicant’s right arm.
14The applicant provided evidence to support further physiotherapy was prescribed by her family physician, Dr. Bromberg on November 17, 2016.
15In reviewing both parties’ submissions, I find the applicant is not entitled to the remaining balance in dispute of $1,276.55 for the June 29, 2015 OCF-18 for the reasons which I note below.
16The applicant incurred expenses for physiotherapy, massage, and acupuncture in January 2016. The applicant’s family physician, Dr. Bromberg recommended additional physiotherapy in November 2016, which was 17 months following the submission of the OCF-18. The applicant incurred expenses for treatment 10 months prior to Dr. Bromberg recommending physiotherapy. The applicant has not provided evidence indicating when the injections to her right wrist were received, nor was any evidence to support acupuncture required. Further, Dr. Milne noted in his report that further acupuncture treatment is not required and the applicant did not wish to continue with acupuncture treatment.
17Regarding the amounts proposed by Dr. Milne for the assistive devices, the amounts were in accordance with a medical supplier, AGTA Homecare. In the OCF-18, it doesn’t note a description of the exercise equipment brand, or where the costs were obtained from.
18Dr. Milne approved massage therapy at rates in accordance with the Professional Services Guidelines (FSCO September 2014). The applicant has not provided evidence to support that the additional amounts proposed within the OCF-18 for massage therapy are justified beyond the amounts approved by Dr. Milne.
19Therefore for the above noted reasons, the additional amount of $1,275.55 proposed in the June 29, 2015 OCF-18 is not reasonable and necessary.
(ii) Online Classes
20On December 2, 2015, Nicole Sharma, Occupational Therapist submitted an OCF-18 through PiOT Inc. which recommended the applicant attend three online training courses towards a Bachelor of Health Administration, each costing $794.00 ($2,382.00 total.) Ms. Sharma’s report noted the coursework was the applicant’s backup plan in case she was unable to return to her pre-accident employment and the coursework would keep the applicant mentally engaged in goal-oriented activities on a daily basis. A note from the applicant’s treating psychologist dated December 14, 2015 noted “engaging in the course - benefit - will put in treatment plan for courses.” The applicant submitted as the course work was recommended by both of the applicant’s treating practitioners and was undertaken by the applicant to mitigate her losses; it is reasonable and necessary for the applicant’s rehabilitation. The applicant incurred the cost of registering for two out of the three courses ($1,588.00) but was unable to complete them.
21The applicant relied on s.16(1) of the Schedule which states that rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by an insured person which facilitate the person’s reintegration into the labour market.
22The respondent noted an entry made on December 14, 2015 by the applicant’s treating psychologist: the applicant had not reached “max rehab potential- we can’t say yet that she can’t go b [sic] to prev job – engaging in course – benefit – we’ll put in tx plan for courses.” The respondent further submitted that it was speculative at that time that the applicant would not be able to return to her previous employment. The respondent submitted there was no evidence put forth by the applicant that the three courses were necessary in December 2015 in accordance with the Schedule or case law. Lastly, the respondent submitted the courses were not suggested as reasonable and necessary by any of the applicant’s treating practitioners until they were raised by the applicant.
23It was the respondent’s submission that the applicant has not provided any evidence that she could not obtain rehabilitation and re-training through her long-term disability (“LTD”) insurer.
24The applicant submitted that at the time the OCF-18 was submitted to the respondent; the applicant had not met the definition of a “Totally Disabled Participant” as noted within the applicant’s LTD policy.
25I find this treatment plan is not reasonable and necessary. Upon review of the evidence regarding the three online courses, the treatment plan was submitted eight months following the accident and the evidence does not support that they were reasonable and necessary for the applicant’s rehabilitation. The applicant raised taking three courses with two of her treating practitioners eight months following the accident. These courses were recommended by the practitioners as providing a benefit to the applicant. The applicant’s treating psychologist did note in December 2015 that the applicant had not reached “max rehab potential” and at that time could not say if the applicant would not be able to return to her previous job. I find this information supports the conclusion that the treatment plan for the online courses and the expenses incurred by the applicant for two courses was premature at the time they were submitted and not reasonable and necessary at that time.
(iii) Optometric Vision Therapy
26The applicant submitted that following the accident she developed: headaches, dizziness, and difficulty reading and focusing.
27On May 19 and 26, 2016, the applicant was assessed by Dr. D. Yew, optometrist. Dr. Yew diagnosed the applicant with post-traumatic vision syndrome and recommended a referral for vision therapy.
28The applicant’s expert, Dr. D. Rayman, Optometrist, performed an extensive sensorimotor and perceptual-motor assessment on the applicant on August 12, 2016 and diagnosed the applicant with the following: accommodative insufficiency, accommodative dysfunction, convergence insufficiency, oculo-motor dysfunction, saccadic dysfunction, and visual processing deficits. It was concluded by Dr. Rayman that these diagnoses are “most likely the result of the motor vehicle accident that occurred on April 3, 2015 as the applicant had no history of these issues prior to the accident.”
29A treatment plan for optometric vision therapy in the amount of $4,200.00 was submitted by Dr. Rayman, which was denied by the respondent pending a section 44 paper review. The respondent submitted the applicant has not established the proposed treatment is reasonable and necessary, was caused by the accident, and that it was properly diagnosed by the appropriate medical expert.
30The respondent submitted they received an undated report from Dr. Rayman which included the same diagnoses as Dr. Rayman’s April 20, 2017 report. The respondent arranged a section 44 paper review of Dr. Rayman’s and Dr. Yew’s findings. The paper review was done by Dr. P. Ranalli, Neurologist with a sub-specialty in neuro-ophthalmology and neuro-otology on November 25, 2016.
31The conclusions of Dr. Ranalli summarized within the respondent’s submissions include:
13 months passed between the accident and when the first visual symptoms of the applicant were recorded on May 12, 2016;
Dr. Yew’s assessment of May 19, 2016 did not yield a diagnosis but noted ocular motility disorders which were not part of the applicant’s complaints presented;
The described tests utilized by Dr. Yew were not validated, nor accepted by the mainstream medical community;
It is “implausible” Dr. Rayman’s diagnoses are related to the accident as the symptoms resulting from these ocular motor problems were never reported after the accident;
It is not possible for post-concussive symptoms to begin13 months after the accident. Brain trauma symptoms are maximum at onset, or within 48 hours, and generally diminish over time;
The vision therapy is not reasonably required.
32The applicant submitted that Dr. Rayman’s opinion is based upon the applicant’s data on optometric testing and diagnosed conditions clinically correlated to the accident. The applicant further submitted Dr. Ranalli’s report does not address the diagnoses but forms conclusions and diagnoses based upon a paper review.
33On a balance of probabilities, based on the evidence before me, I cannot find that the accident caused post-traumatic vision syndrome diagnosed by Dr. Yew or the diagnoses yielded by Dr. Rayman. I afford little weight to the applicant’s May 2016 assessment conducted by Dr. Yew. Dr. Yew’s clinical note and record of May 26, 2016 diagnosed the applicant as having post-traumatic vision syndrome but there is no further information provided regarding the cause, or linking it to the accident. In Dr. Rayman’s report dated April 20, 2017, it noted that the applicant’s diagnoses are “most likely the result of the motor vehicle accident that occurred on April 3, 2015.” Dr. Rayman further noted that the reason for this is that the applicant had no history of these issues prior to the accident. Dr. Ranalli opined that it is “implausible” that Dr. Rayman’s diagnoses are related to the accident as the symptoms expected to result from the applicant’s ocular motor problems were never reported after the accident, and post-concussive symptoms cannot begin thirteen months after the accident. I prefer the opinion provided by Dr. Ranalli over the opinion of Dr. Rayman. The diagnoses of Dr. Rayman noted the diagnoses are “most likely” the result of the accident but it is not definitively stated that the accident caused the applicant’s vision symptoms. Therefore based upon the evidence provided, I cannot find that post-traumatic vision syndrome was caused by the accident.
34Dr. Ranalli opined the vision therapy proposed in the treatment plan was not reasonably required. The applicant has not led with any evidence to support this treatment plan is reasonable and necessary. Therefore I find the treatment plan for vision therapy is not payable.
(iv) Reading Glasses
35On May 26, 2016, Dr. Yew wrote two prescriptions; one for distance eyeglasses and one for reading glasses. The distance eyeglasses were paid for by the applicant’s collateral benefits provider. The applicant submitted to the respondent; the cost of the eye exam for the reading glasses and the cost for purchasing the reading glasses, both were denied by the respondent. The respondent advised they had been “previously submitted and paid.” The applicant noted there has been no explanation of benefits, nor proof of payment provided by the respondent.
36The respondent submitted that the applicant has not provided evidence that both pairs of eyeglasses prescribed in 2016 are a result of the accident. The respondent noted in its submissions that any payment previously issued “was paid in error as replacing glasses damaged in the accident.”
37The applicant submitted that Dr. Yew’s two separate prescriptions for eyeglasses are evidence that the applicant required eyeglasses as a result of the accident because the applicant did not have any prescriptions for eyeglasses prior to the accident. The applicant submitted this is “presumptive evidence” that the accident caused or contributed to the applicant requiring distance and reading glasses.
38The applicant has relied on the issuance of two prescriptions for eyeglasses from Dr. Yew in May 2016 as evidence that as prescription eyeglasses were only required after the accident, the accident has caused or contributed to the applicant requiring eyeglasses for distance and reading. The respondent submitted that any payment previously issued for eyeglasses was paid in error. I do not find on a balance of probabilities that the issuance of prescription eyewear thirteen months following the accident definitively links the accident to the applicant requiring eyeglasses for distance and reading. Therefore, this treatment plan is not payable.
(v) Moving Expenses
39The applicant submitted that prior to the accident her and her husband were living in a two bedroom condominium rental. They purchased a detached home prior to the accident. They were notified that the house would be habitable effective June 2015 and notice was provided they were vacating their rental unit prior to the accident.
40It is the applicant’s submission that but-for the accident, she would have been able to pack her belongings and assist her husband with moving from the rental condominium to the detached home. The applicant submitted her husband could not move the items independently and the applicant hired two professional movers and an invoice was issued for 10.5 hours work in the amount of $1,089.23. The expense was incurred by the applicant.
41The applicant submitted that she was unable to assist with the move in June 2015 as this was two months following the accident and this move was prior to the scheduled surgery on her right wrist in August 2015.
42The applicant submitted that the dominant purpose of the rehabilitation benefit as per the Schedule is to reduce or eliminate the effects of the applicant’s disability resulting from the impairments.
43The respondent has submitted that there is no authority that moving expenses incurred during the period in which the applicant was convalescing are reasonable and necessary rehabilitation benefits when the move was not caused by the accident.
44The respondent submitted in the alternative, the applicant has not established but for the accident, she would have performed the work equivalent to two movers. The respondent further submitted that the applicant has not provided information relating to what specifically was done by the movers, and what the applicant could not do after the accident.
45The respondent lastly submitted that the moving expenses claimed are: “speculative, not connected to the accident, and not reasonable and necessary.”
46I do not find this moving expense is payable. Moving expenses are not listed under s. 16(3) of the Schedule as one of the rehabilitation benefits payable under the Schedule. While I accept that the applicant’s right wrist impairment may have limited or prevented her from assisting with their move, the decision to move was made by the applicant prior to the accident. The accident itself did not cause the applicant to move to another home. There has been no evidence or case law provided by the applicant to support this expense is connected to the accident and payable under the Schedule, nor that moving expenses fall within one of the listed benefits based on the facts of this case. Therefore I do not find this benefit to be payable.
CONCLUSION
47The Applicant’s appeal on all issues in dispute before the Tribunal is dismissed.
Released: May 30, 2018
___________________________
Kimberly Parish, Adjudicator