T.H. v. Allstate Insurance Company of Canada, 2020 CanLII 35514

Citation: T.H. vs. Allstate Insurance Company of Canada, 2020 ONLAT 19-004567/AABS

Released Date: 05/14/2020

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:

[T.H.]

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Cezary Paluch

APPEARANCES:

For the Applicant:

[T.H.], Applicant

Joseph Dart, Counsel

For the Respondent:

Rita Filippo, Representative

Crystal A. Schulz, Counsel

HEARD: Combination:

April 6, 2020 via teleconference¹ and written submissions: February 24, March 9 and 23, 2020

OVERVIEW

1The applicant, T.H., was injured in an accident on March 7, 2015, and sought benefits from the respondent, All State Insurance Company, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010² (“Schedule”). The respondent refused to pay for two of the treatment plans requested by the applicant. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of that dispute.

2The parties participated in a case conference but were unable to resolve their dispute and, thus, proceeded to this hearing.

ISSUES TO BE DECIDED

3The following are the issues to be decided:

1. Is the applicant entitled to receive a medical benefit in the amount of $5,436.00 for optometric services, recommended by Dr. Jonathan Wareham in a treatment plan submitted April 10, 2017, and denied by the respondent on April 26, 2019?

2. Is the applicant entitled to receive a medical benefit in the amount of $1,272.31 for occupational therapy services, recommended by Collin Moore of Modern OT in a treatment plan submitted September 27, 2018, and denied by the respondent on October 17, 2018?

RESULT

4T.H. is entitled to the claimed benefits as they are both reasonable and necessary. T.H. is also entitled to interest on the payment of any overdue benefits in accordance with s. 51 of the Schedule.

ANALYSIS

Issues 1 and 2: Entitlement to Medical Benefits

5Sections 14 and 15 of the Schedule provide that an insurer shall pay for medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that the treatment plans in dispute are reasonable and necessary.³ This requires the applicant to demonstrate that the impairment for which the treatment is sought was sustained as a result of the accident.

6The respondent does not concede causation. Therefore, I must first decide whether the applicant’s impairments for which she seeks treatment were sustained as a result of the accident. If I find that the impairments were sustained as a result of the accident, then I must also determine whether the disputed treatment plans are reasonable and necessary.

i) Causation - Were the applicant’s impairments sustained as a result of the accident?

7The applicable test in making this determination is the “but for” test: whether T.H. would have had the impairments but for the first accident.⁴ According to Sabadash, the accident does not need to be “the cause” of the injuries, but at least “a necessary cause.”⁵ Ultimately, however, causation is a question for the Tribunal, considering the totality of the evidence.⁶ The applicant must show that she would not have suffered the injuries “but for” the accident.

8I find that the injuries for which the applicant seeks treatment for vision and occupational therapy were sustained as a result of the accident. In other words, but for the motor vehicle accident she would not have suffered the impairments which are the bases for her current claims for treatment.

9The respondent submits that the applicant suffered soft tissue injuries and cervicogenic headaches which have resolved, and that her ongoing complaints relate to pre-existing conditions (left knee surgery in 2013 and 2014, complaints of headaches, degenerative disc disease, cystic mass on her thyroid, hypertension, nicotine addiction, some vision problems) and post-accident conditions (aneurysm surgery in November 2015, the death of her husband in November 2015, the death of her sister in September 2016, her three brothers’ cancer diagnoses, and ongoing follow-up related to her own possible thyroid cancer).

10The applicant states in her affidavit that following the accident she developed the following: pain and muscle strain in her neck, back and right hip; headaches; dizziness; blurred vision; and balance issues. She further deposes that before the accident she had a small aneurysm in her head (discovered in 2013 and for which she had surgery in 2015) but it was asymptomatic and she only experienced mild headaches from time-to-time, not as severe as after the accident. T.H. further states that, before the accident, she never experienced any dizziness, blurred vision, balance issues or and chronic pain and that, since the accident, these symptoms have persisted to the present. T.H. submits that there is no correlation between her aneurysm and visions issues. The respondent chose not to cross-examine the applicant on the contents of her affidavit. Therefore, this evidence is unchallenged and uncontradicted. There is no basis in the evidence for me to reject the applicant’s evidence.

11Both parties rely on medical evidence to support their contentions. After reviewing this evidence, I find the applicant’s medical evidence from Dr. Wareham, optometrist, and Dr. D. Day, neuropsychologist, including the notes from the applicant’s treatment provider, CBI, are more compelling and convincing than any of the evidence adduced by the respondent on the issue of causation.

12In his Evaluation Report dated May 2, 2016, Dr. Wareham noted that, since the accident, the applicant had persistent vision-related symptoms and poor balance, dizziness, blurred vision and headaches. His diagnoses included: binocular dysfunction, ocular motor dysfunction, and uneven R/L signal transduction, all of which he summarized as Post-Traumatic Vision Syndrome. Similarly, in his second Evaluation Report dated March 6, 2017, which formed the basis of the first treatment plan, Dr. Wareham again diagnosed T.H. with Post-Traumatic Vision Syndrome. He noted that T.H. suffered a concussion as a result of the accident and noted that there has not been much improvement in T.H.’s symptoms. Specifically, she still struggles to read as her vision blurs, her balance is not right, and her left eye is “doing its own thing.” T.H.’s subjective visual complaints were corroborated by the objective evidence of visual impairment from the perceptual testing administered (e.g., Developmental Eye Movement Test, Readalyzer, Motor Free Visual Perception Test), which placed T.H. in lower percentiles in various categories.

13T.H. also saw Dr. D. Day for a neuropsychological assessment on September 20, 2017. In his report dated January 31, 2018, Dr. Day answered the specific question of what neuropsychological injuries T.H. sustained as result of the accident. In particular, he replied as follows:

She suffered a significant concussive injury, that while it may appear to have been relatively minor, occurred in the context of an existing neurological condition. The interaction of the concussion she experienced, the existing medical vulnerabilities, the treatment required to address these issues, complicated by significant life losses have resulted in a complex response to the accident in question, and a more prolonged recovery.

14Ultimately, Dr. Day diagnosed her with Post Concussive Syndrome, Neurocognitive Disorder Due to Other Medical Condition (exacerbated by aneurysm), Somatic Symptom Disorder (headache pain related to the accident) and Depressive Mood Disorder (unresolved bereavement). Dr. Day further described that T.H.’s accident-related injuries have left her with a number of symptoms, including headache pain, poor balance, vertigo and vision loss.

15Finally, there are also numerous references in the notes and records of CBI Health Group and Modern OT regarding T.H. not feeling well and complaining of headaches, dizziness, and visual disturbances. For example, the Discharge Report dated October 13, 2015, prepared by K. Grose, PT, notes that her headaches and dizziness have worsened. Similarly, the Occupational Therapy Report prepared by S. Nowak, OT, on December 5, 2018 notes that, pre-accident, T.H. was able to manage her headaches which, since the accident, have increased in intensity and duration. The same report also notes that T.H. has also suffered from persistent visual deficits, including blurry or double vision, particularly in the left eye which has negatively impacted her driving as she has trouble driving at night.

16As well, following her aneurysm surgery, a Clinic Report dated August 11, 2016, from Dr. J. Cook, who performed this surgery, describes a good outcome with complete aneurysm obliteration, and notes that T.H. continues to have issues with her vision and see an optometrist. Most importantly, with respect to the causation issue, Dr. Cook, who was T.H.’s treating doctor, explained that it is difficult to attribute her vision problems to her surgery as the surgery was done in the lateral sylvian fissure away from the optic apparatus and cranial nerves. Dr. Cook also made the comment that T.H.’s headaches were likely secondary to the accident. This is supported by T.H.’s affidavit, in which she explains that there has been no correlation between her aneurysm and vision issues.

17I cannot deny that T.H.’s issues may have contributed to her current impairments. However, the post-accident evidence before me presents a substantial change from what her pre-accident health issues noted. Her complaints are consistent and continuous in the well documented medical documentation before the Tribunal and are confirmed via diagnoses in the detailed reports and notes of several of her medical practitioners and treatment providers. Therefore, I am satisfied that on a balance of probabilities that T.H. suffers from severe headaches, pain, balance issues, dizziness and visual disturbances as a result of the accident.

18Having found that the applicant’s impairments resulted from the accident, I must now consider whether each of the treatment plans is reasonable and necessary.

ii) Vision Therapy Services - Are the vision therapy services reasonable and necessary?

19I find the medical benefit for vision therapy to be reasonable and necessary.

20The applicant was assessed by Dr. Wareham who diagnosed T.H. with Post-Traumatic Vision Syndrome and recommended a referral for vision therapy. He conducted a series of tests. He submitted a treatment plan for optometric vision therapy in the amount of $5,436.00 on April 10, 2017, recommending 30 weekly sessions of vision therapy.

21The objective of this treatment plan is to train/retrain visual skills that were lost or disrupted as a result of the injury. Included is working on visual skills, convergence and divergence training, accommodation, ocular motility, eye teaming, depth perception, peripheral vision training, visual awareness, realignment, and special perception rehabilitation. I found Dr. Wareham’s report to be thorough and compelling and his diagnosis stands uncontested.

22The respondent arranged a section 44 IE of Dr. Wareham’s recommendations. The assessment was done by Dr. H. Smyth on May 26, 2017, resulting in a Neurology Report dated June 7, 2017. Dr. Smyth found no neurological basis for the applicant’s balance or visual complaints. Dr. Smyth concluded that T.H has achieved maximum medical recovery from the injuries sustained in the subject accident and that the treatment plan for vision therapy was not reasonable and necessary.

23I placed limited weight of Dr. Smyth’s report and preferred the applicant’s medical evidence which I found more comprehensive and thorough. Dr. Smyth is a neurosurgeon - not an optometrist - therefore not qualified to comment on the applicant’s vision problems which was the basis of the proposed treatment. I also could not reconcile how Dr. Smyth was able to conclude that T.H. had reached maximum medical recovery given the plethora of medical evidence that she continues to suffer from pain and other vision impairments.

24In my view, the scope of the plan and the goals of treatment are proportional to T.H.’s injuries and ongoing vision complaints to potentially address T.H.’s related functional challenges (e.g., driving, standing/balance, concentrating) experienced by the applicant in her daily life and are therefore reasonable and necessary.

iii) Occupational therapy services - Are the occupational therapy services reasonable and necessary and in compliance with s. 38(8)?

25I also find the medical benefit for occupational therapy assessment to be reasonable and necessary. Moreover, the denial notice was not in compliance with s. 38(8) of the Schedule and the respondent must pay for this treatment pursuant to s. 38(11).

26C. Moore, OT, at Modern OT, submitted a treatment plan in the amount of $1,272.31 on September 27, 2018 for an occupational therapy assessment. The treatment plan sought funding for completion of the OCF-23 and OCF-18, travel time, preparation and documentation. The goals of this plan were pain reduction and pain management strategies. The treatment plan lists the applicant’s injuries as “specified disorders of the brain.” Subsequently, T.H. was referred by her lawyer to S. Nowak, OT at Modern OT, for an assessment of her rehabilitation needs. Ms. Nowak prepared a report dated December 5, 2018, which outlines T.H.’s ongoing need for occupational therapy. Ms. Nowak recommend eight 2-hour OT sessions to target areas of pacing and planning, attention and concentration, memory and coping strategies for anxiety, stress and depression. Ms. Nowak explains in her report that she strongly recommends OT services to address and manage T.H.’s cognitive and physical limitations.

27Allstate denied the treatment plan on October 16, 2018 without conducting any IE. Its Explanation of Benefits (EOB) form, dated October 15, 2018 explains that the claim is three years and seven months post-accident and that, based upon its review of the medical documentation on file including the IE of May 26, 2017, Allstate did not feel the plan was reasonable and necessary.

Procedural requirements of s. 38(8)

28T.H. submits that alleging insufficient documentation is not a medical reason to deny a treatment plan. I agree. Sections 38(8) of the Schedule is mandatory and sets out strict notice requirements for insurers responding to treatment plans, with specific consequences if they fail to comply. Pursuant to s. 38(8), the insurer must notify the insured person within 10 business days whether it will pay for the goods and services requested. If it refuses to pay for them, it must state the medical and other reasons why it considers the goods and services not to be reasonable and necessary.⁷

29The requirement of medical reasons was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company,⁸ in which Executive Chair Lamoureux stated:

an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.⁹

30Here, Allstate offered not a single “medical reason” for its denial other than saying that the documentation is insufficient, and this claim is 3 years and 7 months post accident. Such a general explanation would essentially allow an insurer to justify any denial of a plan by merely stating that it had reviewed the plan in light of the medical documentation on file without providing any meaningful details. As well, the passing reference to the May 26, 2017 IE, conducted by Dr. Smyth was also inadequate because that assessment addressed only the first treatment plan related to the vision therapy and not this one. I fail to see how the respondent can rely on that assessment to deny this second treatment plan.

31For these reasons, I find that Allstate failed to satisfy is obligation under s. 38(8) of the Schedule which triggered s. 38(11).

Consequences for defective notices of s. 38(11)

32The consequences of a defective notice are spelled out in s. 38(11)2 which states:

If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

2. The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8) [Emphasis added].

33As a result of the lack of proper notice the mandatory consequence outlined in s. 38(11) of the Schedule apply. There is no evidence before me to suggest that Allstate has ever cured its defective notice. Moreover, it appears that when Allstate did receive Ms. Nowak’s occupational therapy report dated December 5, 2018 (after it had already denied the September 27, 2018 treatment plan), it did not follow up regarding this compelling new evidence from a health practitioner. Therefore, Allstate must pay for this treatment plan.

34At this point, given the operability of s. 38(11), in my view, I need not determine whether the benefits in dispute are reasonable and necessary. I note that section subs. 38(11)2 does not include the “reasonable and necessary” and “expenses incurred” wording (as used in section 15). In other words, s. 38 is a procedural provision and s. 15 speaks to entitlement but s. 38 does not specifically incorporate s. 15 into its wording. Therefore, it seems to me, the related question is once there has been a non-compliance with s. 38(8) does the proposed treatment still have to be reasonable and necessary. More to the point, does s. 38(11) have to be read together with s. 15. My view is that it does not and the consequences of s. 38(11) flow automatically notwithstanding if the proposed treatment is reasonably necessary or not.

35In any event, even if I am wrong regarding my interpretation of s. 38(8) and application of s. 38(11), in order to complete my analysis, I have no difficulty finding that the medical benefit for occupational therapy assessment to be reasonable and necessary. Their need is clearly supported by the evidence.

Reasonable and Necessary

36In its submissions, the respondent focusses on timing - that this plan was submitted 3 ½ years after the accident which suggests that the applicant did not consider this treatment to be necessary. On this point, I do not agree that this is indicative of the applicant’s treatment needs because it is more than several years (i.e. over three 3) after the accident. To accept this means any treatment beyond three years is not effective.

37In her affidavit, the applicant indicates that she found the occupational therapy treatment helpful and it alleviated her pain and gave her strategies to deal with headaches and vision issues. She explains that further sessions will benefit her ongoing recovery and maintain her level of functioning. I am entitled to rely on the evidence of the applicant and her treating team that the treatment helped.

38Based on the overall weight of the evidence, and lack of any responding IE from Allstate, I find that T.H.’s claim for further occupational therapy assessment is reasonable and necessary.

Interest

39Section 51 of the Schedule provides that interest if payable on any overdue payments. Interest was not listed as an issue in dispute as part of the order. The Application indicated “no” to the question whether the claimant was claiming interest.

40I have no evidence that the applicant incurred any of the disputed treatment plans which I have found reasonable and necessary nor do I have evidence that the applicant or clinic invoiced the respondent for the disputed treatment (aside from a reference in para. 13 of the applicant’s affidavit that her lawyer funded the occupational therapy treatment). Once the applicant incurs these costs, or has already, the respondent must reimburse the applicant with interest pursuant to s. 51 of the Schedule.

CONCLUSION/ORDER

41For these reasons, T.H. is entitled to payment of the treatment plan submitted on April 10, 2017, in the amount of $5,436.00 for optometric services, and also a treatment plan submitted on September 27, 2018 in the amount of $1,272.31 for occupational therapy assessment.

42The applicant is entitled to payment for interest on any overdue amounts, if incurred, pursuant to s. 51 of the Schedule.

Footnotes

1. 1Para. 5(iii) of Tribunal Order dated October 15, 2019, scheduled a two-hour teleconference component on April 6, 2020 to allow the respondent to cross-examine the applicant on her affidavit. However, when the parties called in on April 6, the applicant was not available due to medical issues, at which point the respondent decided to dispense with the cross-examination and proceed to have the issues decided on the written record. I was prepared to grant an adjournment to allow the respondent to conduct the cross-examination on another date but, given its position, the hearing was completed, and I reserved my decision.
2. 2O. Reg. 34/10.
3. 3Scarlett v. Belair Ins. Co., 2015 ONSC 3635 (Div. Ct.) at paras. 20-24.
4. 4See Sabadash v. State Farm et al. 2019 ONSC 1121. (“Sabadash”)
5. 5Ibid. at para. 39.
6. 6M.Y. v Aviva Insurance Canada, 2019 CanLII 130606 (ON LAT) para. 19.
7. 7For a detailed analysis of the notice requirements under s. 38(8) see Reconsideration in 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT).
8. 8T.F. v. Peel Mutual Insurance Company 2018 CanLII 39373 (ON LAT).
9. 9Ibid. at para. 19.