Licence Appeal Tribunal File Number: 20-002436/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:
Shelbie Kerr
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Lous J. DelSignore, Jr., Counsel
For the Respondent:
Aviva Insurance Company
Amanda R.M. Faulkner, Counsel
HEARD:
By Way of Written Submissions
BACKGROUND
1The applicant was injured in an automobile accident on December 16, 2015, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). The applicant was denied the treatment in dispute on the basis that it was not reasonable and necessary and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
a. Is the applicant entitled to $1,152.21 ($2,823.05 less partially approved amount of $1,670.85) for psychological services recommended by St. Joseph’s Health Care in a treatment plan (OCF-18) submitted December 14, 2018?
b. Is the applicant entitled to $499.75 for audiometric and speech language pathology services recommended by St. Joseph’s Health Care in a treatment plan (OCF-18) submitted January 8, 2019?
c. Is the applicant entitled to $927.00 for optometric services recommended by Dr. Suwala in a treatment plan (OCF-18) submitted January 10, 2019?
d. Is the applicant entitled to $1,210.00 for a driving assessment recommended by St. Joseph’s Health Care in a treatment plan (OCF-18) submitted January 28, 2019?
e. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the driving assessment plus applicable interest as it is reasonable and necessary.
4The applicant is not entitled to the balance of the psychological treatment plan, the optometric or audiometric assessment plans, or interest, as they are not reasonable and necessary.
ANALYSIS
Are the treatment and assessment plans reasonable and necessary?
5To receive payment for a treatment plan under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving same are reasonable.
6Although the accident occurred in December 2015, the applicant did not submit a disability certificate (OCF-3) until November 27, 2018, with impairments identified as intracranial injury, depressive episode, anxiety disorder, PTSD, headache syndromes, subject visual disturbances and cervicalgia. The applicant received treatment in 2015, but Aviva contends that her file was closed on March 29, 2016 due to inactivity. The treatment plans in dispute were submitted in a two-month span between December 2018 and January 2019.
7Aviva also submits that the applicant submitted new documents in this hearing that were not previously disclosed to it. It argues that the applicant’s practitioners appear to be attempting to attribute all of her symptoms to the accident, ignoring her pre-existing psychological history, without providing information as to the delay in seeking benefits from Aviva for nearly two years. In the interest of fairness, I considered all of the evidence before me and assigned it the weight I deemed appropriate in order to make a determination on the issues in dispute.
$1,152.21 balance for psychological services
8The OCF-18 proposed $2,823.06 and was partially approved by Aviva in the amount of $1,670.85. The $1,152.21 in remaining items are: $329.20 for provider transportation; $498.80 for an extra half hour per session; $199.50 for two hours to complete a progress report that was proposed to take four hours; and $124.70 for the denial of half of the consultation time with the treatment team members.
9The applicant submits that she has well-documented psychological concerns such as major depression, panic disorder and driving anxiety, which are significant barriers to her recovery because they prevent her from leaving the house to get treatment, which is evidenced by her failing to show up for appointments. The applicant argues that she needs help beyond a social worker, but that Aviva denied her provider the ability to attend at her residence, the time to provide her proper treatment, complete a full report and consult with other practitioners on her impairments. Aviva initially denied the treatment plan in full based on a s. 44 report by Dr. Derry, psychologist, but after a s. 44 addendum report by Dr. Derry, agreed to partially approve the OCF-18.
10While Dr. Derry’s proposed alterations in his addendum report appear to be rather frugal, it remains the applicant’s burden to prove that the unapproved items are reasonable and necessary to achieve the stated goals. I find the applicant has not met her onus. For example, the applicant did not explain why an extra half hour of treatment per session was required or why 1.5 hours constitutes “the full time required” to provide her with treatment, generally. In a similar vein, her submissions do not explain why four hours (as opposed to the partially approved two hours) was a reasonable amount of time needed to write a “full” progress report or why a progress report could not be written in two hours. Additionally, it remains unclear why the remaining half of unapproved consultation time was required or what that time entails. There are no additional comments in the OCF-18 to justify the time proposed for each item.
11With regard to Aviva’s refusal to pay transportation costs for the provider, I do not find that Aviva is requiring the applicant to drive to obtain her treatment, as alleged. Rather, Aviva’s position is that there was no indication that other treatment providers have treated the applicant in her residence or that the applicant is so disabled that she cannot travel for treatment. Other than submitting that these unapproved items are necessary, the applicant has not provided specific evidence to dispute Aviva’s position that the approved items are not reasonable, meaning she has not met her burden to prove that the unapproved portions of the OCF-18 are reasonable and necessary
$499.75 for an audiometric and speech language pathology assessment
12The OCF-18 completed by Ms. Stekar, occupational therapist, proposed an audiology assessment and two follow up visits in order “to perform a hearing assessment of auditory processing, hyperacusis, tinnitus as well as peripheral hearing” and complete a report on same. It was denied on the basis of a s. 44 report by Dr. Atlas, otolaryngologist, who determined that the applicant’s complaints of dizziness were more likely attributable to her head injury than an otologic etiology, meaning the assessment was not reasonable and necessary.
13The applicant submits that she consistently complains of post-collision dizziness and that the assessment is reasonable and necessary to determine the source of her dizziness. She submits that Dr. Atlas did not dispute her symptoms and confirmed that they are likely related to a head injury, which she submits is exactly what the audiology assessment was proposed to assess. In turn, the applicant argues that approving the assessment is in her best interest to confirm, instead of just assuming, that her symptoms are neurological in nature.
14In his s. 44 report, Dr. Atlas confirmed that the applicant suffered no otolaryngologic injury as a result of the accident, finding that her physical and audiometric examinations were normal. Dr. Atlas states that the applicant’s description of her dizziness and symptoms are much more in keeping with her known head injury than an otologic impairment. As I understand it, the applicant submits that the assessment is still reasonable and necessary to confirm that her symptoms are neurological and to rule out the source of her dizziness, however, it is unclear how the audiology assessment proposed in the OCF-18 would further achieve this goal where Dr. Atlas confirmed that the applicant’s hearing, from both a physical and audiometric perspective, is normal. There is nothing in the OCF-18 in evidence, proposing only $100 for the assessment and $150 each for two follow-ups, that suggests the proposed assessment has a neurological scope or that it is more tailored to the applicant’s specific symptoms than the hearing assessment already conducted by Dr. Atlas. Accordingly, I find the OCF-18 is not reasonable and necessary.
$927.00 for an optometric assessment
15The OCF-18 proposed $927.00 for a visual assessment and one follow-up visit with Dr. Suwala, neuro-optometrist. It was denied following the s. 44 neuro-ophthalmology report of Dr. Ranalli, neurologist, who found that the applicant had no significant visual symptoms and that she demonstrated excellent vision.
16The applicant submits that since the accident she has experienced vision disturbances, photosensitivity and “spasming” of her eyes which are not consistently present and were not present during the s. 44 assessment with Dr. Ranalli. She submits that a more detailed assessment by an experienced neuro-optometrist is reasonable and necessary to determine the underlying cause of her vision issues.
17I find the applicant has not demonstrated that the OCF-18 is reasonable and necessary. The initial recommendation for this assessment seems to have been made by a social worker following the applicant’s self-reporting that she feels as though her vision becomes shaky and her eyes start to water and that it feels like her eyes are spasming. These symptoms are subjective, there are limited contemporaneous complaints of same and where Dr. Ranalli, an experienced neurologist, found no issues with her excellent vision, no need for optical correction and a normal examination in every respect, it is difficult to see how another assessment at the cost proposed would be reasonable and necessary or how same would aid in the applicant’s recovery.
$1,210.00 for a driving assessment
18The OCF-18 proposed a driving assessment, which was denied on the basis of Dr. Derry’s June 2019 s. 44 report that found it was premature from a clinical perspective to provide an in-vehicle assessment. Aviva maintained its denial following Dr. Derry’s September 2019 addendum report. The applicant submits that she has suffered from driving anxiety post-accident and does not have her licence. She submits she had her G1 licence pre-accident, but the accident prevented her from taking the test to obtain her G2 licence and her G1 has now expired as a result of the delay from the denial. The lack of a driving licence has prevented her from obtaining consistent treatment. She argues that it was always the intent for her anxiety to be addressed first by counselling, and then through an in-vehicle program, the latter of which she has been denied access to.
19I find the applicant has demonstrated that the assessment is reasonable and necessary. The applicant’s driving anxiety is well-documented, and Dr. Derry seems to agree that treatment for same was reasonable and necessary and completed through the applicant’s counselling with Ms. Prossler. Dr. Derry’s reasons for denying this OCF-18 in his addendum report are convoluted and do not actually address the in-vehicle component of the plan, suggesting that the applicant’s driving anxiety can be overcome in a clinical setting only.
20However, as the applicant asserts, the goals identified in Part 9 of the OCF-18 are to treat the applicant’s driving anxiety first through clinical counselling, which would then allow her to implement the strategies during an in-car assessment, under the guidance of an assessor. While the OCF-18 does not provide specific timelines or details, I find that it clearly states that the assessment would be done by both an occupational therapist and a certified driving instructor. I agree with the applicant that approving this assessment would help alleviate the applicant’s driving anxiety and assist the applicant with obtaining her driving licence.
21For these reasons, I find that the applicant has demonstrated that the goals of the driving assessment are reasonable and necessary at the costs proposed and are therefore payable with proof of incurred. Accordingly, the applicant is entitled to applicable interest on incurred amounts of this OCF-18, pursuant to s. 51.
CONCLUSION
22The applicant is entitled to the driving assessment plus applicable interest as it is reasonable and necessary.
23The applicant is not entitled to the balance of the psychological treatment plan, the optometric or audiometric assessment plans, or interest, as they are not reasonable and necessary.
Released: November 12, 2021
Jesse A. Boyce, Vice-Chair