E.L. v. Unica Insurance Inc., 2019 CanLII 130407

Citation: E.L. vs. Unica Insurance Inc., 2019 ONLAT 18-007091/AABS

Tribunal File Number: 18-007091/AABS

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:

[E. L.]

Applicant

And

Unica Insurance Inc.

Respondent

DECISION

ADJUDICATOR: Asad Ali Moten

APPEARANCES:

For the Applicant: Darcy W. Romaine, Counsel Michael D. Hanton, Counsel

For the Respondent: Olga Zemlinsky, Counsel

HEARD IN WRITING: July 8, 2019

OVERVIEW

1The applicant was involved in an automobile accident on September 26, 2015. She sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“Schedule”).

2The respondent refused to pay for treatment as recommended in three treatment plans (OCF-18) submitted by the applicant between September 2016 and May 2017. The applicant then applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

3The applicant’s position is that the treatments proposed are reasonable and necessary because she sustained a tear in her rotator cuff and vision difficulties as a result of the accident, and therapy and assistive devices are required to help her rehabilitate.

4The respondent argues that the treatments proposed for vision difficulties are not reasonable and necessary, and that there is no evidence that the rotator cuff tear occurred because of the accident. Further, the respondent argues that the applicant should avail herself of OHIP physiotherapy first. Therefore, according to the respondent, the benefits claimed are not reasonable and necessary, and not payable.

ISSUES

5The issues in dispute in this hearing are:

i. Is the applicant entitled to a medical benefit in the amount of $2,085.00 for optometry services recommended in a treatment plan submitted on September 7, 2016 (the “optometry services OCF-18”)?

ii. Is the applicant entitled to a medical benefit in the amount of $1,646.00 for assistive devices (optometry – prescriptive eyewear) recommended in a treatment plan submitted on May 31, 2017 (the “prescription eyewear OCF-18”)?

iii. Is the applicant entitled to a medical benefit in the amount of $3,450.90 for physiotherapy services recommended in a treatment plan submitted on March 23, 2017 (the “physiotherapy OCF-18”)?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6The applicant is entitled to physiotherapy treatment as claimed in the physiotherapy OCF-18 application in the amount of $3,450.90. The applicant has not established that she is entitled to the optometry treatment and prescription eyewear assistive devices as claimed in the optometry services OCF-18 and the prescription eyewear OCF-18, respectively.

7The applicant is entitled to interest on any amounts incurred to-date for physiotherapy treatment as set out in the March 23, 2017 OCF-18 pursuant to section 51 of the Schedule.

BACKGROUND

8The applicant was involved in an accident in [Ontario] on September 26, 2015. On the night of the accident, the applicant was sitting in the middle backseat, in between her mother and step-father. At an intersection, the applicant’s car was struck from the side. The applicant was transported by ambulance to Southlake Regional Health Centre and discharged later that day with no physical injuries apparent in x-rays of her head, neck, and shoulder.

9The applicant was 15-years-old at the time of the accident and was enrolled full-time in high school. As of the conclusion of this written hearing, the applicant is 19-years-old and attending university studying accounting.

10After the accident, the applicant visited her family physician on several occasions complaining of persistent right shoulder pain and weakness. She also visited her optometrist on several occasions with vision issues.

11The applicant underwent two MRI scans in January and October 2016 which did not reveal a torn rotator cuff. After a surgical consult and arthroscopic surgery in January 2017, it was discovered that the applicant did have a torn right rotator cuff. The disputed physiotherapy OCF-18 was completed after the applicant had surgery and it proposed a course of physiotherapy to rehabilitate the repaired shoulder.

12The disputed optometry services OCF-18 was completed by a vision rehabilitation specialist following assessments by two optometrists and proposed a vision rehabilitation treatment plan in the amount of $2,085.00. In addition, a third optometrist completed the disputed prescription eyewear OCF-18 proposing two pairs of glasses for the applicant.

ANALYSIS

13The onus is on the applicant to demonstrate, on a balance of probabilities, that all the treatments in dispute are reasonable and necessary.¹ This requires the applicant to demonstrate that the impairment for which the treatment is sought was sustained as a result of the accident. The causation test to be applied is the “but for” test.²

14Next, the applicant must show ongoing impairment and adequate medical reasons to support the proposed treatment in the form of objective medical evidence.³ With this in mind, I address the applicant’s entitlement to each of the disputed treatment plans in turn.

i. Is the applicant entitled to the claimed optometry treatment recommended in the optometry services OCF-18?

15I find that the applicant has not established, on a balance of probabilities, that the proposed treatment plan is reasonable and necessary. This flows from my finding that the applicant’s vision issues existed prior to the accident, and there is insufficient evidence to demonstrate that these issues were exacerbated by the accident. In addition, even if this finding were incorrect, I would still find that the proposed treatment plan is not reasonable and necessary because of a lack of particulars within the proposed treatment plan.

16The applicant, through her vision rehabilitation specialist, submitted the September 7, 2016 OCF-18 for vision therapy. Three goods/services are generally referenced as part of the treatment plan, though the OCF-18 does not specify what these treatments are or provide any further information as to how the treatment may assist the applicant. The total cost for the proposed treatment is $2,085.00.

17The applicant had previously been seen by her optometrist Dr. Elmalem in October 2014, almost a year before the accident. At that time, the applicant was prescribed glasses and was diagnosed with convergence insufficiency and exophoria. She was also counseled on vision therapy but ultimately vision therapy was not prescribed.

18On July 3, 2016, nine months after the accident, the applicant saw optometrist Dr. Levman, complaining of blur (near and far), exophoria, and was noted as previously diagnosed with conversion insufficiency in 2014. This report made no mention of the accident or of a concussion.

19Following a July 12, 2016 examination, the applicant’s optometrist, Dr. Levman, diagnosed the applicant with ‘post-concussion vision syndrome’. The examination record lists the applicant’s father as informing Dr. Levman that the applicant was “diagnosed with a concussion.” The accompanying report does not indicate whether Dr. Levman independently determined that the applicant had a concussion. None of the clinical notes from the hospital or from the applicant’s family doctor note a concussion diagnosis.

20Dr. Levman referred the applicant to optometrist Dr. Blanc for a neuro-optometric assessment, completed in August 2016. Dr. Blanc noted that the applicant had been in a car accident, “resulting in shoulder injury and concussion”. Again, there is no indication of how Dr. Blanc arrived at a concussion diagnosis. Dr. Blanc diagnosed the applicant with:

a. Binocular dysfunction and reduced stereopsis;

b. Oculomotor dysfunction; lacking degrees of freedom with eye movement free of head and head free from body;

c. Visual-vestibular and proprioceptive-vestibular dysfunction;

d. Visuo-spatial dysfunction with ambient vision collapse and visual midline shift, as well as distorted spatial projection;

e. Accommodative dysfunction;

f. Convergence insufficiency; and,

g. Visual perception or processing dysfunction.

21Dr. Blanc recommended glasses for distance and for reading, vision therapy with Dr. Peddle, and concurrent physiotherapy. Dr. Peddle then completed the disputed OCF-18.

22Dr. Ranalli completed a section 44 neuro-ophthamology assessment of the applicant on November 30, 2016. The applicant reported use of glasses helped her pain, as did vision therapy. Dr. Ranalli examined the applicant and found her vision to be objectively normal. Dr. Ranalli did not find convergence insufficiency or accommodative dysfunction and concluded that no treatment or vision therapy is necessary.

23In my opinion, the applicant’s application cannot succeed for the following reasons. First, there is evidence to suggest that she had some vision issues, including convergence insufficiency and exophoria prior to the accident, and was at least counseled on vision therapy. Therefore, as a baseline, it is not possible for the accident to have caused the applicant’s vision issues.

24Second, while it is possible that the applicant’s vision issues may be exacerbated after an accident, in this instance the worsening of the applicant’s vision issues are attributed to a concussion and ‘post-concussive’ diagnosis, neither of which are supported by any medical records and are based on the applicant’s father’s statement to Dr. Levman. In addition, there is no evidence to indicate that a concussion, if sustained, was as a result of the accident. There is no other evidence to indicate that the accident worsened the applicant’s vision issues.

25Lastly, even if the accident had worsened the applicant’s vision, the proposed treatment plan contains no information as to what the treatment might be for these vision issues. The OCF-18 is bare with respect any meaningful description of the goods or services to be provided. Contained within it are three goods/services references, each containing the same vague language, and each for a different amount. I cannot decide, on a balance of probabilities, that the treatment plan proposed is reasonable and necessary when the treatment plan does not tell me what the proposed treatment is.

ii. Is the applicant entitled to the claimed prescription eyewear recommended in the prescription eyewear OCF-18?

26I find that the applicant has not established, on a balance of probabilities, that the proposed prescription eyewear in the May 31, 2017 OCF-18 is reasonable and necessary.

27Related to the previous issue, the applicant, through her optometrist Dr. Lacroix, submitted a treatment plan for prescription glasses in the amount of $1,646.00 on May 31, 2017. According to the OCF-18, this amount covers the cost of two pairs of glasses, one for distance and one for reading, and their associated lenses.

28The applicant submitted a receipt for prescription glasses with her LAT application. This receipt indicates that the glasses were purchased on October 15, 2016 – seven months before the OCF-18 was submitted. The respondent argues that there is no obligation to pay for an expense incurred before the insured person submits a treatment plan (see section 38(2) of the Schedule). The applicant is of the position that to such a reading of section 38(2) is incorrect.

29In any case, it is not necessary for me to interpret section 38(2) of the Schedule in determining this issue. The evidence before me indicates that the applicant had been prescribed glasses prior to the accident. There is insufficient evidence to support a conclusion that the accident caused the applicant to need newer, stronger glasses, rather than this degeneration being caused by some non-related issue, specifically her pre-existing eye condition. As such, I cannot conclude that the proposed treatment plan is reasonable and necessary.

iii. Is the applicant entitled to the claimed physiotherapy treatment recommended in the March 23, 2017 OCF-18?

30There are two related sub-issues argued by the parties with respect to the physiotherapy treatment plan: (a) the respondent argues that causation has not been established between the accident and the rotator cuff tear; and (b) the respondent submits that the applicant is required to avail herself of OHIP physiotherapy post-surgery rather than turning to private sources.

31I am satisfied that the applicant has established causation with respect to her shoulder impairment. I also find that, in this particular case, the applicant is not required to pursue treatment available through OHIP in lieu of the proposed treatment plan. Finally, I find that the proposed treatment plan is reasonable and necessary.

32After the applicant’s arthroscopic rotator cuff repair surgery/acromioplasty in January 2017, the applicant’s physiotherapist submitted a treatment plan for post-surgical physical therapy in the amount of $3,459.90 on March 23, 2017. The proposed treatment includes an assessment, documentation, 24 sessions of therapy on multiple body sites, 12 sessions of therapy on the applicant’s back, lumbar support, and TENS unit accessories. The estimated duration of this treatment is 14 weeks.

(a) Has the applicant established causation?

33I agree with the respondent that the onus is on the applicant to show that the impairment was caused by the accident. In other words, ‘but for’ the accident, would the applicant have suffered a torn rotator cuff? The answer is no. The applicant suffered a torn rotator cuff because of the subject car accident on September 26, 2015.

34The evidence of the applicant supports that, contrary to the respondent’s argument, the applicant’s right shoulder and neck have been a source of pain and impairment since the accident. The ambulance call report indicates that the applicant was complaining of pain and tenderness to her front right neck and upper right back when the paramedics arrived.

35The Southlake Regional Health Centre records from the night of the accident are consistent. The triage flowsheet describes the applicant as complaining of neck and scapula pain on her right side, in addition to bruising on her left side. Another page also describes pain to the applicant’s left neck and shoulder, which is, in my opinion, not evidence of “confusion” as the respondent suggests but reflective of the bruising described in emergency room records from the night of the accident. Further, the x-ray ordered that night was of the applicant’s right shoulder.

36Subsequently, the applicant complained of right neck and shoulder pain, as well as limited motion to her family doctor on October 2, 2015. On December 1, 2015, the applicant went back to her family doctor reporting that her shoulder pain had not improved with physiotherapy, and that her pain was worse with lifting.

37The applicant underwent an MRI for her right shoulder on January 16, 2016, four months after the accident. That MRI did not reveal a tear but notes the presence of bursitis. The applicant underwent an additional MRI on October 3, 2016, which showed no change from the previous MRI.

38In August 2016, the applicant complained to her family doctor that she still had right shoulder pain, accompanied now by a popping and decreased range of motion. Following an orthopaedic consult and arthroscopic surgery in January 2017, it was discovered that the applicant had a “full thickness tear [of the rotator cuff] with exposed humeral head”, which was repaired during the surgery. A subsequent report by the surgeon in June 2017 noted that the MRI scans did not show the rotator cuff tear.

39Dr. Lexier, an orthopaedic surgeon who completed an insurer’s examination of the applicant, stated in all three of his reports (May 5, 2017; August 15, 2017; and March 7, 2019) that the physiotherapy treatment plan was not reasonable and necessary. He bases this opinion on his finding that the accident did not cause the rotator cuff tear because the MRI’s did not reveal the tear. According to Dr. Lexier, an MRI is more likely to show a false positive than a false negative. I put little weight on this opinion as Dr. Lexier did not provide any source or authority for this claim, and Dr. Lexier’s opinion does not preclude the possibility of a false negative. He also did not opine as to whether the physical symptoms that the applicant complained of could be indicative of a rotator cuff tear or rebut the surgical evidence about the tear.

40Given that there is no evidence of any intervening event before or since the accident that may have caused the rotator cuff tear, and that the applicant has since the accident consistently complained of a worsening impairment of her right shoulder, and the repair of the rotator cuff appears to have, to some degree, alleviated the applicant’s symptoms, I find that the applicant has established, on a balance of probabilities, that the accident caused the injury to her shoulder.

(b) Is the applicant required to pursue OHIP-funded physiotherapy before seeking accident benefits?

41Generally, physiotherapy is not a service insured by OHIP. However, in certain instances, including post-surgery, there are some limited physiotherapy services available to patients as covered by OHIP. The respondent’s medical expert Dr. Lexier suggests that the applicant in this case is required to avail herself of the publicly-funded physiotherapy prior to seeking accident benefits. The applicant argues that there is no such requirement.

42The basis for the respondent’s position is section 47(2) of the Schedule, which states:

Payment of a medical, rehabilitation or attendant care benefit or a benefit under Part IV is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.

43In the reconsideration decision G.T. v. Unifund Assurance Company 2017 CanLII 81567 (ON LAT), the Executive Chair held that OHIP is an ‘insurance plan or law’ for the purposes of the above provision. In addition, the Tribunal in G.T. outlined the test for determining what is ‘reasonably available’ at para 27:

At the very least, an insurer must advance some evidence or submission that, on balance, establishes that the benefit at issue, whether in whole or in part, was reasonably available to the insured from a collateral provider. If an insurer has satisfied that onus, the burden then shifts to the insured to prove that the benefit at issue was not in fact reasonably available.

44In this particular case, no evidence or submission has been advanced by the respondent or its medical expert that the proposed treatment plan physiotherapy is reasonably available through OHIP-funded physiotherapy. There is no evidence of the OHIP-funded physiotherapy’s quality, quantity, treatment regimen, equipment used, or duration; these would be bases upon which the Tribunal might be able to compare the two sources of physiotherapy and determine whether or not the proposed treatment is reasonably available under another plan. Physiotherapy, unlike the proposed x-rays in 16-004501 v. The Sovereign General Insurance Company, 2018 CanLII 13158 (ON LAT), may have significant qualitative and quantitative differences between providers, which may lead to different treatment outcomes in a patient.

45Given the facts of this case, the applicant is not required to avail herself of OHIP-funded physiotherapy prior to seeking accident benefits for physiotherapy coverage.

(c) Is the proposed treatment plan reasonable and necessary?

46I find that the proposed treatment plan is reasonable and necessary.

47Post-surgery, the applicant’s surgeon and a second orthopaedic consultant both recommended a course of physiotherapy to strengthen the shoulder and reduce joint weakness and pain. The goal of the proposed treatment plan is to reduce pain, increase strength, and increase range of motion. There is no evidence submitted from the respondent to rebut the recommendation of the applicant’s surgeon and second consultant. In addition, the applicant reported that physiotherapy prior to the surgery, but much later than the accident, assisted in reducing her shoulder pain. I recognize that the applicant had, as late as December 1, 2015, reported that physiotherapy was not helping. I do not find these reports by the applicant to be inconsistent. Physiotherapy with one provider at one time may not be effective, while with another provider at another time may. Therefore, the proposed physiotherapy treatment plan is necessary in rehabilitating the applicant’s right shoulder post-surgery.

48The proposed treatment plan is also reasonable. The treatment plan contemplates 36 sessions of physiotherapy (some sessions may be concurrent) over a span of 14 weeks. During the periods of time during which the applicant was attending physiotherapy, she reported attending two or more times a week. Also included in the proposed treatment plan are a lumbar support and TENS unit accessories, both of which are reasonably related to the proposed goals. Therefore, I find that the proposed treatment plan is reasonable.

49Dr. Lexier’s suggestion that the proposed physiotherapy is not reasonable and necessary is based solely on his opinions that the injury was not caused by the accident, and that the applicant should avail herself of OHIP-funded therapy first; both of these opinions have been addressed.

50In sum, I find that the physiotherapy treatment proposed in the physiotherapy OCF-18 is, on a balance of probabilities, reasonable and necessary. The applicant is entitled to the medical benefits claimed therein.

iv. Is the Applicant entitled to interest on the claimed benefit?

51As I find that the applicant is entitled to the physiotherapy treatment claimed in the physiotherapy OCF-18, the applicant is entitled to interest for any overdue payment of that benefit pursuant to section 51 of the Schedule.

CONCLUSION

52For the reasons above, I find that the applicant is entitled to the benefits claimed for physiotherapy treatment in the physiotherapy OCF-18 application, along with interest. The applicant is not, however, on the evidence before me, entitled to the optometry treatment or prescription eyewear assistive devices claimed in the optometry services OCF-18 and prescription eyewear OCF-18, respectively.

53The applicant’s appeal is granted in part.

Footnotes

1. 116-004348 v. Allstate Canada, 2018 CanLII 39464 (ON LAT).
2. 2Sabadash v. State Farm et al., 2019 ONSC 1121.
3. 317-002689 v. Aviva Canada Inc., 2018 CanLII 2311 (ON LAT). 17-00208 v. The Personal Insurance Company, CarswellOnt, 1160, para 24.```