Blundell v. Co-operators General Insurance Company, 2021 CanLII 131250

Citation: Blundell v. Co-operators General Insurance Company, 2021 ONLAT 19-014614/AABS

Licence Appeal Tribunal File Number: 19-014614/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:

Samantha Blundell

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Rand Meshki, Counsel

For the Respondent:

Amanda M. Lennox, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant, Samantha Blundell, was involved in an automobile accident on August 16, 2017, and sought benefits from the respondent, Co-operators General Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”).

2The respondent removed the applicant from the Minor Injury Guideline. It approved some of her claims for medical benefits but denied others. The applicant then applied to the Licence Appeal Tribunal (“Tribunal”) for resolution of the dispute.

ISSUES

3The issues to be decided in the hearing are:

a. Is the applicant entitled to $1,280.00 for optometric services, recommended by Dr. Olivia Wiebe of Niagara Vision Therapy in a treatment plan (OCF-18) dated December 19, 2018 and denied by the respondent on January 4, 2019?

b. Is the applicant entitled to $1,277.00 for physiotherapy services, recommended by Lise Danecker of Stamford Physiotherapy in a treatment plan (OCF-18) dated June 21, 2019 and denied by the respondent on July 5, 2019?

c. Is the applicant entitled to medical benefits recommended by Dr. Rachel Skerrett in the amount of:

i. $3,141.81 for psychological services, submitted in a treatment plan (OCF18) dated July 22, 2019 and denied by the respondent on August 13, 2019?

ii. $5,137.13 for psychological services, submitted in a treatment plan (OCF18) dated August 27, 2019 and denied by the respondent on August 28, 2019?

iii. $6,034.85 for psychological services (CBT sessions, neurofeedback/biofeedback sessions and a driver simulation program) submitted in a treatment plan (OCF-18) dated March 2, 2020 and denied by the respondent on March 3, 2020?

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

RESULT

4The applicant has established entitlement to the medical benefits she seeks. The respondent is liable for a total of $16,870.79 for all treatment plans in dispute plus interest calculated in accordance with s. 51 of the Schedule.

PRELIMINARY MATTER

5In its submissions, the respondent addresses the issue of an award under s. 10 of Regulation 664. Regulation 664 empowers the Tribunal to order payment of a lump sum by an insurer to an insured person if the insurer has unreasonably withheld or delayed payment of benefits. The issue of an award does not appear in the Tribunal’s August 31, 2020 case conference report and order. Nor was it added by way of any motion as an issue to be decided in this hearing. The applicant did not raise the issue in her initial submissions. She did, however, address the respondent’s submissions on an award in her reply.

6I find that the issue of an award under Regulation 664 is not properly in dispute in this hearing. It is not the purpose of reply submissions to add issues to a dispute or to advance arguments that could have been made in initial submissions. Even if I were to permit the applicant to add a claim for an award by way of reply submissions, I would have no basis in evidence for doing so, as she has failed to establish grounds for an award.

7The well-established standard for granting an award under Regulation 664 is set out in the Financial Services Commission of Ontario case of Plowright v. Wellington Insurance Co [Plowright].² An award is appropriate where an insurer has engaged in conduct that is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The record before me does not establish conduct of this nature. I find that it was reasonable for to the respondent to rely on the opinions of its assessors even if its denials were, ultimately, legally incorrect. The applicant has not established that her claims were unreasonably denied or delayed in the manner described in Plowright. As a result, I find that an award is unwarranted.

ANALYSIS

8To be eligible for the medical and rehabilitation benefits she seeks in this application, the applicant bears the onus of proving, on a balance of probabilities, that the expenses are reasonable and necessary as a result of the accident.

9The parties are largely in agreement as to the applicant’s accident-related injuries. She sustained a concussion, numerous soft tissue sprain and strain injuries, post-traumatic headaches, persistent pain requiring prescription drug therapy and nerve block injections, post-traumatic stress disorder, and adjustment disorder. This dispute turns on the reasonableness and necessity of the proposed treatment interventions to treat those injuries.

Psychological services

10The parties disagree about the nature and the extent of treatment required to address the applicant’s accident-related psychological impairments. In denying the applicant’s psychological services claims, the respondent relied on the Psychiatric Assessment Report of Dr. K. Adekunle Aladetoyinbo, dated September 25, 2019. Dr. Adekunle Aladetoyinbo concurred with the applicant’s treating psychologist, Dr. R. Skerrett, that the applicant suffers from post-traumatic stress disorder as a result of the accident. He also determined that the applicant met the diagnostic criteria for adjustment disorder. However, Dr. Adekunle Aladetoyinbo recommended that the applicant only undergo 10 to 12 of the 20 sessions of cognitive behavioural therapy (CBT) proposed in the July 22, 2019 treatment plan, as he considered 20 sessions to be “excessive.”

11I accept Dr. Adekunle Aladetoyinbo’s clinical observations and diagnoses. But his recommendation on the number of therapy sessions the applicant requires is less cogent, and I accordingly give it less weight. He does not explain how 10 to 12 sessions of therapy are sufficient to address the applicant’s post-traumatic stress symptoms while 20 sessions would be “excessive”. He offers no recommendation for reassessing the applicant’s progress after the conclusion of 10 to 12 sessions, and the respondent requested no further examinations beyond this point.

12The respondent highlights the applicant’s history of bereavement as relevant to the assessment of how much treatment she requires. To be clear, Dr. Adekunle Aladetoyinbo did opine that the applicant’s loss of two close relatives was significant to the symptom profile he observed during his assessment. (She had described her affect as “feeling kind of sad, overwhelmed after the accident”.) However, Dr. Adekunle Aladetoyinbo attributed the applicant’s core post-traumatic symptoms (i.e. distressing dreams) to the accident and her mood symptoms at least in part to the accident. This is important because the psychological services in dispute include interventions like neurofeedback and biofeedback, which are targeted at addressing brain dysregulation, a consequence of trauma. Even if some of the therapies in dispute would target mood symptoms caused partially by the applicant’s history of bereavement, the respondent’s own assessor acknowledged that but for the accident, the applicant’s level of impaired psychological functioning would not exist. In other words, the contribution of the applicant’s history of bereavement to her psychological difficulties is not a relevant consideration in determining the amount of treatment she is entitled to as a result of the accident. The respondent relies on Dr. Adekunle Aladetoyinbo’s evidence to advance that assertion, and I find its submissions on this point unpersuasive.

13The applicant’s treating psychologist recommended the proposed interventions to treat her accident-related impairments. The respondent submits that there is little evidence on the effectiveness of neurofeedback and biofeedback. But the applicant’s psychologist explains that these treatment modalities assist subjects in recognizing the physiological effects of trauma, thereby promoting recovery from brain dysregulation. Although Dr. Adekunle Aladetoyinbo recommended “evidence-based psychopharmacological intervention”, implying that neurofeedback and biofeedback are not “evidence-based”, I am satisfied that non-pharmacological options are reasonable means by which to treat the applicant’s ongoing post-traumatic stress symptoms. The recommended treatments are consistent with the February 2020 recommendation of Dr. Victor Uwaifo, the applicant’s consulting psychiatrist, that the applicant continue to meet with a private psychologist to receive trauma therapy. The respondent does not offer a compelling explanation as to why, in view of Dr. Uwaifo’s and Dr. Skerret’s recommendations, the proposed therapy fails to meet the reasonable and necessary test under s. 15 of the Schedule.

14The respondent submits that the applicant failed to raise psychological concerns with her family physician for two years after the accident, and that this delay undermines the necessity of the proposed treatments. The applicant submits that she had difficulty admitting her psychological difficulties and seeking help for them. In my assessment, the record does little to support the respondent’s submission that the applicant’s delayed reporting of psychological symptoms undermines her need for treatment. The respondent’s own assessor found that the applicant suffered from serious accident-related psychological impairment warranting treatment. If I accept Dr. Adekunle Aladetoyinbo’s diagnoses, and I do, the only real dispute lies in how much treatment, and what types, are reasonable and necessary, not whether treatment is warranted at all. For the reasons I have set out, I accept the recommendations of the applicant’s treating psychologist on these questions. The applicant has comfortably met her onus on this issue.

Physiotherapy services

15In a consultation report dated March 20, 2019, the applicant’s pain specialist, Dr. Christine Giordani, recommended a multi-pronged treatment regimen for the applicant’s conditions. That regimen included continued, regular physiotherapy. The disputed treatment plan for physiotherapy was submitted a short time later in July of 2019.

16The respondent relies on the Physiatry Assessment Report of Dr. Paul Stacey, dated September 25, 2019. Dr. Stacey found no evidence of objective musculoskeletal impairment upon physical examination. However, his examination did yield pain complaints from the applicant that are consistent with her reported history of pain symptoms, particularly during tests of the lumbar spine, hip, and sacroiliac joint. In addition, Dr. Stacey noted that the applicant’s shoulder range of motion suggested thoracic spine symptoms. Although Dr. Stacey suggests that some of his findings show a level of “pain focused behaviour” on the part of the applicant, he also presumes her pain complaints to be a result of the accident.

17I find that Dr. Giordani’s recommendation was made within a reasonable time before the disputed plan was submitted. The applicant was referred to Dr. Giordani by her family doctor, and his recommendations support the reasonableness and necessity of physiotherapy to her shoulder and back pain, neuralgia, and chronic migraines. Dr. Stacey’s report does little to weaken the need for continued physiotherapy at the time the treatment plan was submitted. It confirms that the applicant continued to suffer from pain at the time she was assessed in September 2019. It also suggests that the applicant showed objective signs of thoracic spine limitations. On balance, the applicant has met her evidentiary onus in respect of this treatment plan.

Vision therapy services

18The applicant’s treating optometrist, Dr. Olivia Wiebe, recommended in a treatment plan dated December 19, 2018 that the applicant receive eight sessions of vision therapy. Over a previous course of 12 sessions, Dr. Wiebe documented improvement in the applicant’s balance and a reduction in the number and severity of her headaches. Although the applicant was still having difficulty with convergence and saccadic eye movements, she had made progress in these areas. The proposed treatment follows a May 14, 2018 Visual Skills Assessment Report by Dr. B. Stacey, a June 1, 2018 letter and an October 10, 2018 Visual Skills Report, both by Dr. Wiebe, diagnosing the applicant with post-traumatic vision syndrome and outlining the medical necessity of additional vision therapy.

19The respondent denied the applicant’s vision therapy claim based on the opinion of its assessor, Dr. Jonathan Micieli. Dr. Micieli assessed the applicant over the course of two hours on February 4, 2019 and detected no sign of any neuro-ophthalmic abnormality in the applicant. He could not test the applicant’s point of convergence due to her discomfort during the examination, but he concluded that her history was not consistent with convergence insufficiency because she had no complaints when reading and no significant exodeviation at near to suggest this condition. Based on his observation that the applicant had no abnormality to treat, Dr. Micieli opined that there was no good evidence to suggest vision therapy for the applicant.

20While I accept that Dr. Micieli detected no evidence of abnormality in the applicant, I have difficulty with his conclusion that there is no evidence to support vision therapy in the applicant’s circumstances. Dr. Micieli does not attempt to reconcile his examination findings with either the prior medical evidence he refers to in his report or the applicant’s reported complaints. In addition, he concludes in the absence of direct observation of the applicant’s point of convergence that she does not suffer from convergence insufficiency. Though he offers other findings for his conclusion (i.e. the applicant was able to read and she lacked exodeviation at near), he does not clearly explain how these findings are determinative in ruling out this diagnosis.

21I must weigh Dr. Micieli’s findings against the evidence before me which suggests that the applicant required vision therapy to deal with her post-accident conditions and had made notable progress with treatment. Dr. Micieli’s finding of no visual system abnormality is at odds with the evidence of Dr. Wiebe, the applicant’s treating optometrist. Though there is disagreement between the experts, I have no reason to doubt the reliability of Dr. Wiebe’s observations and recommendations. In an examination under oath, the applicant stated that her depth perception while driving was improved when she was having a “good day”. The impacts of fatigue on the applicant’s ability to focus are also documented in the May 14, 2018 Vision Skills Report of Dr. B. Stacey. Dr. Micieli assessed the applicant for two hours. It is not unreasonable to infer that her functioning in during Dr. Micieli’s examination might have differed from her performance outside the clinical examination setting. Considering the documented impact of fatigue on the applicant’s visual performance, her recorded persistent symptoms, and the benefit she was deriving from therapy, Dr. Micieli’s inability to detect visual abnormalities does not, in my view, positively rule out the need for additional vision therapy.

CONCLUSION AND ORDER

22The applicant has met her onus in establishing entitlement to the medical benefits in dispute. The claimed psychological services, physiotherapy services, and vision therapy services are reasonable and necessary as a result of the accident. The respondent is liable to pay a total of $16,870.79 plus interest calculated in accordance with s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 21993 OIC File No.: A-003985 (FSCO).