Citation: White vs. Travelers Insurance, 2021 ONLAT 19-010567

Released Date: 01/08/2020

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:

Kathleen White

Applicant

and

Travelers Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Karen Hulan

Counsel

For the Respondent:

Sarah Baum

Counsel

HEARD:

By Way of Submissions in Writing

REASONS FOR DECISION AND ORDER

OVERVIEW

1Kathleen White (“applicant”), was involved in a motor vehicle accident as a pedestrian on January 11, 2019 (“accident”) and sought benefits from the respondent Travelers Insurance (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2The applicant was denied benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.

ISSUES

3The issues to be decided in this hearing are:

i. Is the applicant entitled to $3,255.00² recommended by Dr. Riyad Khamis in a treatment plan, OCF-18 dated July 17, 2019?

ii. Is the applicant entitled to $1,200.00 recommended by Dr. Riyad Khamis in a treatment plan, OCF-18 dated July 17, 2019? (“disputed treatment plans”)

iii. Is the applicant entitled to transportation expenses totalling $309.00 submitted on January 15, 2020 and denied February 14, 2020?³

RESULT

4The applicant is entitled to $3,255.00 and $1,200.00 for both disputed treatment plans with interest. The transportation expenses issue is not before me.

LAW

5Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plan he or she seeks is reasonable and necessary.⁴

ANALYSIS

Positions of the Parties

6The applicant submits that her vision impairments were caused by the accident and that all treatment plans for physiotherapy are reasonable and necessary based on her various medical records and reports.

7The respondent submits that the applicant has not proven that her vision impairments were caused by the accident and that even if they were, the disputed treatment plans are not reasonable and necessary. The respondent relies on the report of it’s assessor Dr. Ranalli, respondent’s neurologist.

Does the Applicant Have Vision Impairments Caused by the Accident?

8The respondent submits that the applicant has not proven that her vision complaints were caused by the accident because a) the applicant was having issues with her vision prior to the accident, b) there is no objective medical evidence to demonstrate that these issues were exacerbated by the accident and c) the applicant has failed to produce pre-accident family doctor or optometry records, despite multiple requests, which are required to establish the applicant’s baseline visual symptoms. As a result, the respondent submits that an adverse inference should be made.

9In reply, the applicant submits the respondent had all information it requested, there is no evidence of pre-existing visual asthenopia or nystagmus and the respondent is now improperly attempting to substitute a reason for denying the treatment plans.

10I find that there is ample medical evidence that the applicant has vision impairments caused or exacerbated by the accident. The respondent’s submissions that the applicant was having issues with her vision prior to the accident and there is no objective medical evidence to demonstrate that these issues were exacerbated by the accident are not persuasive. Although the applicant had some issues with her vision pre-accident and wore glasses, taken together, the records of Dr. Marczuk, and her optometrists Drs. Schropp and Khamis and the observations of her physiotherapist Jenny McLeod and Dr. Brown, applicant’s psychologist establish that the applicant has vision impairments caused or exacerbated by the accident.

11Pre-accident records show that the applicant saw Dr. Peters, her optometrist, twice in January 2017 for complaints of severe headaches, eyes getting blurry, vertigo and “trouble seeing in general”. On both visits Dr. Peters notes the applicant’s ocular history is negative for “injury/infection/diplopia/flashes/floaters” and motility testing results are “smooth and accurate”. On the second visit, Dr. Peters noted that the applicant’s vertigo has improved. Dr. Marczuk’s 2018 pre-accident records do not note any vision complaints from the applicant.

12Post-accident, Dr. Marczuk’s records from January 16, 2019, noted light sensitivity and diagnosed concussion and other injuries from the accident. January 23, 2019 Dr. Marczuk diagnosed concussion vision syndrome, recommended the applicant continue wearing dark glasses and noted the applicant would be seeing an optometrist January 26 for visual fields assessment and full eye examination. Dr. Marczuk maintained the concussion diagnosis as a result of the accident throughout 2019, the year in which the disputed treatment plans were proposed. Dr. Marczuk’s August 22, 2019 and December 11, 2019 diagnosis is post-concussion syndrome. Dr. Marczuk’s October 23, 2019 diagnosis is concussion. Further, Dr. Marczuk’s records attribute the applicant’s vision issues to the accident.

13On January 23 Dr. Schropp diagnoses suspected post concussion vision syndrome. After a full eye examination, on January 26, 2019, Dr. Schropp reported to Dr. Marczuk the applicant’s increased visual asthenopia OU including inaccurate pursuits (smooth eye movements) and saccades (rapid eye movements) in all directions, overall visual blur worse at night, difficulty reading CRT or anything close up, sensations of imbalance and nausea with visual tasks, intermittent double vision, acute headaches increasing with visual tasks, light sensitivity, noise sensitivity and increased “flashing light effects” in her vision, as a result of the accident. Dr. Schropp noted the applicant’s screening assessment showed severely constricted visual fields, commonly seen after head trauma/concussion. Dr. Schropp noted a new eyeglass prescription may help her vision but noted a new script would not be offered until the applicant’s head trauma vision symptoms waned. Dr. Schropp noted that the applicant’s ocular health was remarkable for early cortical cataracts which was a possible cause of the hyperopic shift in her spectacle correction, and she exhibited mold ONH assymetry and said these will be monitored over time. “Of significance, she did 120 Point screening assessments which showed severely constricted visual fields – commonly seen after head trauma/concussion”. Dr. Schropp recommended visual therapy. March, 2019 Dr. Schropp diagnosed severe post-concussive syndrome. April, 2019 diagnoses ongoing post concussion vision syndrome, noted “jerky pursuits and saccades”, blurry and double vision, visual symptoms and nausea with refraction testing and recommended a referral to a neuro-optometrist and London Vision Training Clinic. Further, like Dr. Marczuk, Dr. Schropp’s records attribute the applicant’s vision issues to the accident.

14On June 13, 2019 Dr. Khamis, applicant’s optometrist, conducted a neuro-visual rehabilitation evaluation of the applicant, diagnosed concussion from the accident and post trauma vision syndrome. Dr. Khamis reported that his evaluation revealed severe convergence insufficiency, focusing issues, oculomotor dysfunction (visual tracking problems) and that the applicant struggles with visual motor and memory tasks which hinders her ability to read, work on the computer and visually function on a daily basis. Dr. Khamis recommends neuro-visual rehabilitation to help alleviate the tracking issues and convergence problems starting with one block of 16 sessions and a follow up evaluation and report outling when another block of sessions is necessary. Dr. Khamis also recommends specialized therapeutic glasses with special coatings to help with her light sensitivity and focusing problems and polarized sunglasses for the outdoor light sensitivity and indicates he will be submitting an OCF-18.

15Further, Jenny McLeod, applicant’s physiotherapist, in a July 8, 2019 progress report also notes that the applicant’s physical improvement continues to be limited by her post concussion symptoms including “visual processing” and testing indicates a need for “vision rehab”. Dr. Brown following an assessment of the applicant in June, 2019 concluded “support the referral for a neuro-optometry assessment."

16The respondent submits that because the applicant has failed to produce pre-accident family doctor or optometry records, despite multiple requests, an adverse inference should be made. I disagree and decline to draw an adverse inference as suggested. The Tribunal’s February 25, 2020 case conference Order indicates that the parties agreed that an Order for productions is not necessary. If after the case conference the respondent required records that were not produced, it could have brought a pre-hearing motion seeking a production Order but did not. The respondent’s submission that an adverse inference should be made based on the applicant’s failure to provide records is not appropriate in the absence of a requirement to do so. Further, the respondent made submissions about the claimant’s pre-accident vision issues based on the applicant’s records produced demonstrating that it had enough records to do so.

17The respondent relies on the ambulance call records and the hospital records which do not note any head trauma or diagnosis of concussion and the report of Dr. Ranalli. I find the applicant’s medical records set out above more persuasive as to the cause of her vision issues than the ambulance call report and the report of Dr. Ranalli on the issue of causation.

18Although the ambulance call report from the day of the accident indicates that the applicant did not hit her head and there was no loss of consciousness the hospital emergency department records that the applicant “…doesn’t recall impact…Pain head/neck” and the neurological assessment indicates “dizziness, headache” and “patient having headache starting from top of head radiating to forehead”. Imaging of the applicant’s head showed no acute intracranial abnormality and the applicant was discharged. However, Dr. Marczuk who knows the applicant better, less than two weeks after the accident had seen the applicant twice and diagnoses diagnosed concussion vision syndrome as a result of the accident.

19The respondent submits that I should prefer the report of Dr. Ranalli who assessed the applicant for one hour on March 4, 2020 and opined that the two disputed treatment plans are not reasonable and necessary. I disagree. I place little weight on Dr. Ranalli’s report and prefer the applicant’s medical evidence which comes from several different assessors whose observations and conclusions corroborate and support each other for the following reasons.

20Firstly, although Dr. Ranalli is a physician, he does not comment on the diagnosis of concussion and concussion vision syndrome made by the Dr. Marczuk and does not appear to have reviewed the records of Dr. Schropp who conducted a full eye examination.

21Secondly, Dr. Ranalli’s assessment is more than 14 months after the accident and some eight months after the disputed treatment plans were put forward.

22Thirdly, Dr. Ranalli opines that he does not support the clinical diagnosis that the applicant sustained a MTB/concussion in the accident because “based on the best evidence from first responders, and the patient’s own recollection, no significant closed head injury or concussion occurred in this accident….while there was likely some accelerative/decelerative effect on the brain, it appears that no significant neural dysfunction occurred for more than a short period of time after this event, placing her in the category of grade 1 or mild grade 2 closed head injury. The vast majority of individuals with this minor degree of TBI show resolution of symptoms within weeks to a month after such an event.” I find that the evidence from the first responders and the patient’s own recollection is not the best evidence of the applicant’s injuries sustained in the accident. The best evidence comes from Dr. Marczuk who knows the applicant best, the testing and observations of Dr. Schropps and Khamis, and the noted observations of the applicant’s other treatment providers and assessors as to her vision issues post-accident, all made in 2019. In terms of causation, Dr. Ranalli’s opinion is difficult to reconcile with the applicant’s more detailed and more thorough evidence from several different assessors documented right after the accident and over a number of months post-accident and I do not prefer Dr. Ranalli’s opinion.

23Fourthly, Dr. Ranalli also finds that the applicant’s visual limitations are natural history issues, unrelated to the accident and should be improvable by new ocular refraction and eyeglasses prescribed by an optometrist. There is no other medical support for this finding. I find the applicant’s pre-accident medical history as recorded by Dr. Peters and Dr. Marczuk taken together tend to indicate it is unlikely that the severe vision symptoms reported by the applicant would be caused by natural history or poor eyeglasses.

24Lastly, the respondent submits that the applicant must prove her vision complaints are related to the accident and that the correct test is the “but for” test which requires the applicant to demonstrate on a balance of probabilities that her impairments would not have occurred but for the accident and relies on another decision.⁵ The Tribunal has accepted the “but for” test in other decisions.⁶ Here, based on the medical evidence before me, I find that the applicant’s specific post-accident vision issues as described by her physician, her optometrists and other treatment providers would not have occurred but for the accident and are caused or exacerbated by the accident.

Are the Disputed Treatment Plans Reasonable and Necessary?

Visual Training Treatment Plan for $3,255.00 and Therapeutic Glasses Treatment Plan for $1,200.00

25I find that the applicant is entitled to payment for these treatment plans based on the totality of the medical evidence before me because they are reasonable and necessary to treat the applicant’s vision impairments caused or exacerbated by the accident. In totality, the weight of the applicant’s medical evidence is sufficient to establish that these treatment plans are reasonable and necessary.

26Dr. Marczuk and Drs. Schropp and Khamis are in a better position than Dr. Ranalli to assess the applicant’s vision injuries from the accident, to recommend treatment and to opine on the reasonableness and necessity of the treatment. Their evidence, taken together, is more thorough, more specific to vision issues, more proximate in time to the accident than Dr. Ranalli’s assessment and I prefer it to Dr. Ranalli’s opinion. Further, the reports of Dr. Marczuk and Drs. Schropp and Khamis are supportive and corroborate the findings of each other and those of Dr. Brown and Ms. McLeod.

27It is clear from the applicant’s medical evidence that the disputed treatment plans are reasonable and necessary. Dr. Marczuk diagnosed concussion vision syndrome, recommended the applicant continue wearing dark glasses and noted the applicant would be seeing an optometrist January 26 for visual fields assessment and full eye examination. Dr. Schropp diagnosed ongoing post concussion vision syndrome, noted “jerky pursuits and saccades”, blurry and double vision, visual symptoms and nausea with refraction testing and recommended a referral to a neuro-optometrist and London Vision Training Clinic. Dr. Khamis diagnosed post trauma vision syndrome and that the applicant struggles with visual motor and memory tasks which hinders her ability to read, work on the computer and visually function on a daily basis. Dr. Khamis recommends neuro-visual rehabilitation to help alleviate the tracking issues and convergence problems and specialized therapeutic glasses with special coatings to help with her light sensitivity and focusing problems and polarized sunglasses for the outdoor light sensitivity. Ms. McLeod notes that the applicant’s post concussion symptoms including “visual processing” and testing indicates a need for “vision rehab”. Dr. Brown supports referral for a neuro-optometry assessment. All of this evidence taken together establishes the reasonableness and necessity of the two disputed treatment plans.

28The respondent submits that neither Dr. Khamis’ July 16, 2019 report nor the disputed treatment plan provide any meaningful description of the goods or services to be provided, nature of the proposed treatment or how the treatment may assist the applicant and relies on another decision⁷ for the proposition that a treatment plan cannot be found to be reasonable and necessary when it does not indicate what the proposed treatment is. The respondent relies on Dr. Ranalli’s opinion that the applicant did not require specific optometric therapy and that the type of therapy proposed had not shown validated efficacy in this clinical setting. Having reviewed this treatment plan and Dr. Khamis’ report, I am satisfied that, taken together, the treatment proposed is sufficiently explained, specifically, 16 training sessions are training for sight and other senses, combined with instruction for the applicant, assessment, documentation and home therapy kit. The proposition in the EL case is not in dispute here as I have found the proposed treatment sufficiently described and explained.

29The respondent submits that neither Dr. Khamis’ July 16, 2019 report nor the disputed treatment plan provide any meaningful information as to why the applicant would require specialized therapeutic glasses and sunglasses to address her vision complaints as opposed to new eye glasses prescribed by a regular optometrist to better correct her natural history issues, especially since Dr. Ranalli concluded her current eyeglasses were suboptimal at correcting her vision and noted that new eyeglasses could be prescribed by a regular optometrist and there was no need for unique glasses prescribed by a neuro-optometrist. Having reviewed this disputed treatment plan I find that the therapeutic glasses and sunglasses proposed are reasonable and necessary because the scope of the plan and goals of treatment are proportional to the applicant’s injuries and ongoing vision complaints and the costs appears reasonable. No other cost was put forward by the respondent.

30On review of both disputed treatment plans, I find that goals of pain reduction, reduction of visual-related post-concessional symptoms; headaches/dizziness/nausea/photophobia/visual memory/visual disturbances and functional goal of return to activities of normal living are all reasonable and necessary goals for the applicant’s treatment.

31I find that the applicant has experienced enough improvement as a result of these treatment plans to demonstrate that they are reasonable and necessary. The reports of various assessors indicate improvement in her double vision and blurry vision so that she can now read for longer, can do some larger needlework projects, photosensitivity has improved, she no longer wears sunglasses indoors, can control her nausea with medication and is now able to open her windows and has reduced sound sensitivity and can control sensitivity with earplugs.

32I find that the overall cost of achieving these goals is also reasonable. The costs of the plans appear to be in line with the Schedule and the respondent did not argue otherwise except with respect to the cost of the therapeutic glasses which I have found to be reasonable.

Interest

33Although interest was not identified as an issue in dispute in the Tribunal’s case conference Order, s. 51 of the Schedule requires an insurer to pay interest on overdue payments and it was requested by the applicant in submissions. Interest is therefore payable in accordance with s. 51 of the Schedule on the disputed treatment plans.

ORDER

34For the reasons outlined above, I find that the applicant is entitled to both disputed treatment plans with interest. The transportation expenses issue is not before me.

Footnotes

1. 1O. Reg. 34/10.
2. 2The Tribunal’s case conference Order made February 25, 2020 refers to the amount of the issue i treatment plan as $3,266.00 but the OCF-18, treatment plan is for $3,255.00.
3. 3The parties advise that this issue is no longer in dispute and as a result will not be determined by me.
4. 4Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.)
5. 5R.A.A. v. Aviva General Insurance, 2019 CanLII 119759.
6. 6See for example: T.H. v. Allstate Insurance Company of Canada, 2020 CanLII 35514 (ON LAT).
7. 7EL v. Unica Insurance Inc., 2019 CanLII 130407 (ON LAT).