Citation: G.S. vs. Western Assurance Company, 2020 ONLAT 19-003626/AABS

Released Date: 05/27/2020

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:

[GS]

Applicant

and

Western Assurance Company

Respondent

DECISION

ADJUDICATOR:

Nathan Ferguson

APPEARANCES:

For the Applicant:

[G.S.], Applicant

John Watson, Counsel

For the Respondent:

Western Assurance Company

Christine Ellis, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant (“GS”) was involved in an automobile accident on August 30, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). GS requested that the respondent fund a treatment plan intended, among other things, to reduce her concussion related symptoms.

2The respondent denied the request, arguing that GS’ concussion related symptoms were not caused by the accident. GS disagrees and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”) to resolve the dispute.

PRELIMINARY ISSUES

3The respondent argues that the applicant’s claim ought to be dismissed in its entirety as a result of failing to comply with the timelines set out in the August 14, 2019 order written by Adjudicator Gosio. Specifically, the respondent argues that the applicant failed to file submissions in accordance with those timelines and did not request any extension of time or offer any reason for the same. The respondent contacted the applicant and requested its submissions, and these were provided, but the respondent is correct that its time to prepare was hindered by the late filing without any apparent explanation for the same.

4The order issued by Adjudicator Gosio indicated: “The hearing adjudicator will be the final decision-making authority regarding the above noted requirements” including the timelines set with respect to filing. Although the parties were cautioned that submissions beyond the page limits may not be considered by the hearing adjudicator, there was no indication that failure to comply would result in dismissal of the application.

5I find that dismissing the application due to late filing would be tremendously prejudicial to the applicant. On the other hand, allowing the late filing and proceeding with the hearing causes minimal prejudice to the respondent. I appreciate that the respondent received diminished time to prepare submissions in this instance and this is concerning given that both parties agreed to the timelines set out in Adjudicator Gosio’s order. However, there is no indication in this instance that the respondent was unprepared or unable to address the relevant issues within the reduced period of time.

6As a result, having considered whether it would be in the interests of natural justice to dismiss the application on the basis of the late filing, I find that it would be an unfair result.

7The respondent also requested costs under Rule 19 as a result of the applicant’s late filing and I will address this below.

ISSUES

8The issue in dispute is as follows:

i. Is the applicant entitled to a medical benefit in the amount of $1,914.86 for occupational therapy services recommended in a treatment plan submitted on June 26, 2017 and denied by the respondent on August 11, 2017?

9GS withdrew her request for interest on overdue payments in her written submissions.

RESULT

10I find that the treatment plan in dispute is not reasonable and necessary on the balance of probabilities because the applicant’s concussion symptoms are not causally linked to the accident.

ANALYSIS

11The applicant bears the onus to show that the treatment plan in dispute is reasonable and necessary on the balance of probabilities. If the treatment plan relates to impairments that were not causally related to the accident, the treatment plan cannot be considered reasonable and necessary.

12The respondent argues that the applicant’s concussion related symptoms are not related to the accident, which took place August 30, 2016. Rather, the respondent submits that the concussion symptoms are specifically related to an injury GS sustained at work when she was struck in the head by another individual’s elbow on November 1, 2016, or were caused by a fall from a ladder on August 7, 2016, and exacerbated by the blow to the head on November 1, 2016. In either case, the respondent asserts the concussion symptoms are not related to the accident and therefore the treatment plan is not reasonable and necessary.

13The applicant argues that the series of injuries she experienced from August to November 2016 combined to cause the symptoms she experiences. She experienced trauma to her body on three occasions in a short timespan and submits that the cumulative effect of these traumas included her concussion or post-concussion symptoms. That is, the events are intertwined and cannot be viewed in isolation.

14The treatment plan submitted in this instance outlines its goals at part 6 and includes: “pain reduction”, “decrease concussion related symptoms”, “return to activities of normal living”, “improve sleep” and “improve cognition”. The treatment plan also outlines in part 7 that GS’ treatment may be complicated by her “previous hit to the head a couple of weeks prior to the MVA – possible concussion; depression” and after the accident a “hit to the head from another person… concussion”. The injuries and impairments listed on this treatment plan include: concussion; whiplash associated disorder II with neck pain and musculoskeletal spasms; dislocation, sprain and strain of joints and ligaments of the thorax; and tension-type headaches.

15The specific interplay of concussion with GS’ other impairments and symptoms is not described in any detail. I find these issues are not separable and if her concussion is not related to the accident, the entire treatment plan cannot be considered reasonable and necessary.

What is the Cause of the Applicant’s Concussion?

16There is no dispute that the applicant experienced post-concussion symptoms by November 3, 2016 at which time she was treated by her family physician (Dr. Rai) and the clinical notes and records explicitly describe the same. However, the notes and records also indicate that the applicant had pre-existing migraines and depression and her cognitive impairments may relate to these diagnoses. More importantly there are two traumas to the GS’ head which are not related to the accident.

The Fall from a Ladder:

17On August 7, 2016 (approximately three weeks before the accident), GS was installing a ceiling fan in an exercise room and fell from a ladder approximately three feet striking her head on a weight bench. She saw Dr. Rai on August 8, 2016 and reported that her “whole body” was sore as a result. There was no indication of any particular symptom attributed to concussion. There was no diagnosis of concussion offered. GS was not sent for additional testing or evaluation. She was not treated for concussion or put on any form of concussion protocol.

18On August 31, 2016 GS returned to Dr. Rai following the accident and reported that she was in a “car accident yesterday… her entire left side is hurting, mainly her arms… previous injuries from a fall couple of weeks ago… are acting up from the accident”. Based on the notes prepared on August 7, 2016, the injuries acting up appear to be whole body soreness.

The Accident:

19On August 30, 2016 GS was struck from behind while traveling in a vehicle. She was diagnosed with whiplash associated disorder (grade 2) and reported to Dr. Rai that she had “immediate back pain/headaches” and “both her hands… are sore… pain radiating up her forearms”. At the same time, she reported that there was an act of vandalism at her home and this caused her depression to be exacerbated and her sleep to be poor. Her sleep and depressive symptoms are not attributed to the accident. While GS reported pain and headaches as a result of the accident, there was no indication that she experienced any other symptoms corresponding to concussion. Dr. Rai did not diagnose concussion. The applicant was not advised to follow a concussion protocol.

20GS directed me to Dr. Derry’s Psychological Assessment dated March 7, 2017 (page 5 of 19) which indicates that Dr. Rai reported the applicant was “diagnosed with a concussion initially” following the accident and that the accident increased her depressive symptoms. This is an accurate reflection of Dr. Derry’s Psychological Assessment; however, it is simply not in keeping with the notes and records prepared concomitantly with the accident. That is, Dr. Rai did not observe any symptom attributed to concussion at that time and did not diagnose concussion, following either the fall from a ladder or the accident, according to the notes and records available to me.

21In addition to the reporting up to August 31, 2016, after this time GS attended three additional appointments with Dr. Rai before being struck on the head at work. On September 9, 2016 GS felt that her back pain was improving and was now at a level of 5/10. On October 7, 2016 her headaches had improved as had her back and although she stated she “feels better” Dr. Rai stated that there was “room for improvement”. The October 28, 2016 note indicates that her “headaches have greatly improved” and now happened only once or twice a week, rather than daily. There was no suggestion that GS experienced any specific symptom related to concussion.

The Blow to GS’ Head at Work:

22Unfortunately, GS was struck in the head while at work on November 1, 2016. She attended an appointment with Dr. Bhatia (at Dr. Rai’s office) on November 3, 2016 to discuss this. At that time, Dr. Bhatia confirmed that she was hit in the head by another individual’s elbow. She felt dizzy and nauseated and had ringing in the ears. GS was diagnosed with concussion and directed to follow a concussion protocol.

23In my view the documents prepared surrounding these events clearly illustrate that GS was not concussed by the accident, or before the accident. This diagnosis was made only after the blow to her head. There is no medical report before me that addresses the potential for a concussion to be experienced at an earlier time and aggravated by a series of traumas, or more specifically that outlines the opinion that this happened to GS. It is not out of the realm of possibility that such a series of events transpired, but this is not evidenced by the reporting available to me.

24In addition, while Dr. Derry’s Psychological Assessment referenced an apparently unsupported initial diagnosis of concussion, the assessment also provides GS’ understanding of the cause (p.7 of 19). GS distinguishes the concussion from the previous events or injuries. She specifically attributed her tinnitus to the concussion and not to the accident. In addition to this implication that the events were separate, GS explicitly stated the same to Dr. Derry: “She reported that she sustained a concussion, not in the accident, but while at work on November 1”.

25As a result of the foregoing, I find on the balance of probabilities that the applicant’s concussion and concussion related symptoms are not attributable to the accident, but to the injury sustained at work on November 1, 2016.

Is the Treatment Plan in Dispute Reasonable and Necessary?

26Given that I find that GS’ concussion related symptoms are not caused by the accident and that the goals of the treatment plan include decreasing her concussion related symptoms, it follows that I find the treatment plan is not reasonable and necessary on a balance of probabilities. It seeks to address impairments and symptoms that are not attributable to the accident.

CONCLUSION

27The treatment plan at issue is not reasonable and necessary and therefore the applicant is not entitled to the medical benefit sought. The application is therefore denied.

COSTS

28The respondent requested costs on the basis that the applicant did not follow the timelines for filing set out by Adjudicator Gosio and provided no explanation for this. The late filing prejudiced the respondent because the respondent had less time to prepare and file its own submissions as a result.

29I agree with the respondent that the applicant acted unreasonably in failing to provide any reason for the late filing of its submissions and materials. This is technically sufficient to warrant an order of costs pursuant to the Tribunal’s Rules of Practice (Rule 19.1).

30However, I note that Rule 19.3 requires that a submission on costs include the amount sought, which the respondent did not provide in this instance. In addition, I note that the practical impact of the late filing in this instance is negligible. The respondent was successful in the present hearing despite the lessened time to prepare.

31As a result, I find that in this particular instance no award of costs is necessary or warranted.