T.H. v. Allstate Insurance Company of Canada, 2021 CanLII 13010

Citation: T.H. vs. Allstate Insurance Company of Canada, 2021 ONLAT 19-004567/AABS

Released: January 26, 2021

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

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Joseph C. Dart, Counsel

For the Respondent:

Crystal Schulz, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an accident on May 7, 2015, and sought various benefits from the respondent, Allstate, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). The parties disagreed over entitlement, resulting in the applicant filing an application for dispute resolution at the Tribunal.

2It is my understanding that the parties previously proceeded to a hearing and a decision on entitlement was rendered by the Tribunal. However, I have been instructed that the decision resulted in a reconsideration request. This reconsideration request was granted by the Tribunal, resulting in the original decision being cancelled and a new hearing ordered to be conducted by a different adjudicator based on the original submissions. Further, for the purposes of this hearing, I was instructed not to review the Tribunal’s original decision, its reconsideration decision granting this hearing or the applicant’s affidavit.

ISSUES IN DISPUTE

3According to the Case Conference Order, the following issues are in dispute:

i. 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?

ii. 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

4I find the applicant is entitled to payment for both of the treatment plans in dispute, as she has demonstrated that they are reasonable and necessary.

ANALYSIS

Causation

5While there are only two treatment plans in dispute, Allstate raised several causation issues related to both OCF-18s and the origin of the applicant’s impairments. To this end, it is well-settled that the test for causation is the “but-for” test, or in other words, whether the applicant would have sustained her impairments but for the accident that occurred in May 2015. While the accident does not have to be the sole or only cause of the applicant’s impairments, the accident must at least be a “necessary cause” of her impairments.²

6The parties agree that the applicant’s accident-related impairments justified removal from the Minor Injury Guideline. Post-accident, while the applicant has received physiotherapy and occupational therapy (“OT”) services, she continued to complain of headaches, blurred vision and dizziness, which resulted in a concussion diagnosis. Then, in 2015, the applicant underwent surgery for a brain aneurysm that was seemingly first identified in April 2013. Post-surgery, her headaches and vision issues did not dissipate. In May 2016, Dr. Wareham, optometrist, diagnosed the applicant with binocular dysfunction, ocular motor dysfunction and uneven R/L signal transduction, summarized as “Post-Traumatic Vision Syndrome.” Further, in January 2018, after consultation with her neurologist, Dr. Day, the applicant was diagnosed with persisting post-concussive syndrome, somatic symptom disorder and depressive mood disorder. The treatment plans in dispute emanated from these diagnoses.

7As noted, Allstate raised causation issues related to the applicant’s impairments, submitting that: the accident was very minor; that her complaints of headaches and vision issues date back to 2013 when the aneurysm was first discovered; that the increase in her complaints was a result of an increase in the size of her unruptured aneurysm and not as a result of the accident; that the continuation of her headaches in 2016 were typical symptoms following the successful surgical clipping of her aneurysm in November 2015; that in August 2016, Dr. Wood, an ophthalmologist and specialist in the treatment of eye disorders, did not relate her vision issues to the accident; and, that her psychological and headache symptoms can be attributed to significant stressors in her life (her aneurysm and thyroid issue, her husbands’ death, her sister’s death and her sibling’s cancer diagnoses) and not the 2015 accident.

8On review of the medical documentation, I find that there is enough evidence to support the applicant’s contention that her impairments were caused as a result of the accident or, at the very least, that the accident was a “necessary cause” of the increase in her impairments post-accident and to date. While I am alive to Allstate’s submissions on the timeline of the applicant’s complaints, on balance, I find the applicant has consistently reported her symptoms post-accident and these complaints are reflected in the clinical notes of her treatment provider and, critically, in the reports in evidence from Dr. Wareham, Dr. Day and Dr. Cook, all of whom attribute her symptoms and complaints to the accident in one way or another. In particular, Dr. Cook, the applicant’s surgeon, specifically noted that her vision issues were not related to her surgery given that her surgery occurred away from optic apparatus and cranial nerves. I find this opinion—combined with the applicant’s post-surgery reports of worsening vision to Dr. Wareham—difficult to ignore. While I found the s. 44 report of Dr. Smyth to be thorough, I find that the weight of the evidence favours the applicant’s reports and records, as I find these reports present a compelling indication that her symptoms increased as a result of and following the accident and because too much of Allstate’s position is based on speculation. While I agree that there are certainly other factors at play (indeed, the applicant has faced many difficulties over the past decade) I am ultimately persuaded that the applicant has established that she would not have sustained her impairments but for the 2015 accident.

Are the treatment plans reasonable and necessary?

9Therefore, an analysis of the treatment plans in disputed is required. The parties agree that in order to receive payment for medical and rehabilitation benefits under the Schedule, the applicant has the burden of demonstrating that the benefits she seeks are reasonable and necessary as a result of the accident in order to achieve the stated goals.

Optometric Services

10The OCF-18 in dispute recommends 30 weekly sessions of vision therapy, four follow-up assessments and two diagnostic tests totalling $5,436.00, on the basis of Dr. Wareham’s diagnosis, above. The applicant submits that Dr. Wareham is a well-qualified optometrist who ran her through a myriad of tests to arrive at his diagnosis and recommendation, which the applicant asserts is uncontested in this hearing. Further, she cites the opinion of Dr. Cook, who determined that her headaches were likely secondary to the accident. In response, in addition to its causation submissions, Allstate supported its July 2017 denial based on the s. 44 report of its neurologist, Dr. Smyth, who found no neurological basis for the applicant’s complaints or concussion diagnosis and determined, after consulting with staff at the Ontario College of Optometry, that the proposed treatment has no medical basis.

11On a balance of probabilities, I find that the applicant is entitled to payment for the treatment plan in dispute, as it is reasonable and necessary. To begin, I find the additional comments section of the OCF-18 to be quite thorough and helpful in understanding the scope of the proposed treatment and the goals of same, primarily improving her vision and reducing her headaches through retraining and rehabilitation. Dr. Wareham’s optimism that the applicant’s vision struggles can be reduced with this slate of treatment is encouraging and, in my view, the plan presents a reasonable timeline for meeting this goal at a reasonable cost, given the applicant’s persistent struggle. Allstate’s submissions did not address the proposed scope or cost of the treatment plan.

12Further, as the applicant submits, and contrary to the opinion of Dr. Smyth, I find the treatment proposed in the OCF-18 has a medical basis and that it is actually used to treat individuals with vision impairments, as evidenced by the publications cited by Dr. Wareham in the OCF-18 and in the Optometric Practice Reference provided by the applicant. In this vein, while I found Dr. Smyth’s report to be thorough in its analysis of the applicant’s condition, I afforded it limited weight because Dr. Smyth is not an ophthalmologist or optometrist himself, but a neurologist, and therefore, in my view, he was less qualified than Dr. Wareham, a practicing optometrist, to make a determination on the reasonableness and necessity of the treatment proposed. In turn, I agree that Dr. Wareham’s opinion on the applicant’s prognosis and recovery, as a practitioner that has treated the applicant previously, carries greater weight than the opinion of the s. 44 assessor who determined that the applicant had achieved maximum medical recovery despite her consistent complaints and a rather voluminous medical record.

13For these reasons, I find the applicant has demonstrated entitlement to the treatment plan for optometric services, as it is reasonable and necessary and payable once incurred.

Occupational therapy

14Here, the applicant seeks payment for an occupational therapy (“OT”) assessment in the amount of $1,272.31, consisting of an in-home assessment, travel charges for the assessor, research and costing on assistive devices, a report and for the completion of the OCF forms. Based on the OCF-18, it appears that the goals of treatment will be identified after the assessment is completed, but Part 9 identifies the goals as a return to activities of normal living, a reduction in pain and a return to modified work duties. However, it appears that the applicant then sought and completed an OT assessment with Ms. Nowak one year after the submission of this plan, and a report was delivered.

15Complicating the matter somewhat is the fact that Allstate’s denial of this OCF-18 was not based on a competing report or medical opinion. Instead, its notice indicates that since the applicant’s claim is 3 years and 7 months post-accident, that it does not feel that the OCF-18 is reasonable and necessary, absent further medical documentation from the applicant. The applicant did not offer specific submissions on Allstate’s notice under s. 38, taking the position instead that the treatment plan is reasonable and necessary based on her consistent reporting of symptoms, the fact she received OT services previously, on Dr. Day’s recommendation for OT services and the subsequent report from Ms. Nowak that found ongoing OT services were needed.

16While Allstate did not offer a competing medical opinion on entitlement, it remains the applicant’s burden to prove that the OT assessment is reasonable and necessary. I find on a balance of probabilities that the applicant has satisfied her burden, based on the opinions of Dr. Day who recommended OT services and the OT assessment report of Ms. Nowak, who recommended eight, two-hour sessions designed to focus on pacing and planning, attention and concentration, memory strategies, sleep hygiene strategies, and coping strategies. I find this is what the proposed goals of the OCF-18 entailed. Allstate did not offer submissions on the proposed amount of the plan, so I find the cost of the OCF-18 is reasonable and, in the absence of a medical opinion to suggest otherwise, I follow the opinions of Dr. Day and Ms. Nowak, who both recommended OT services, and find the OCF-18 recommending an OT assessment to be reasonable and necessary and payable.

ORDER

17The applicant is entitled to payment for both of the treatment plans in dispute, as she has demonstrated that they are reasonable and necessary.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2See, for e.g., Monks v. ING Insurance Co. of Canada, 2008 ONCA 269; Sabadash v. State Farm, et al., 2019 ONSC 1121.```