Citation: Bonner v. The Co-operators, 2022 ONLAT 20-003221/AABS

Licence Appeal Tribunal File Number: 20-003221/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:

Jennifer Bonner

Applicant

and

The Co-operators

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Michael J. Henry, Counsel

For the Respondent:

Amanda Lennox, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1Jennifer Bonner, (“the Applicant”), was involved in automobile accidents on December 20, 2017 and November 8, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). The Applicant was denied certain benefits by The Co-operators (“the Respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues to be decided in the hearing are:

I. Is the Applicant entitled to medical benefits in the amount of $3,970.00 for optometry services, recommended by Dr. P. Quaid in a treatment plan dated January 17, 2019?

II. Is the Applicant entitled to a medical benefit in the amount of $2,076.07 for a speech-language pathology assessment recommended by Z Speech Pathology in a plan dated November 24, 2020?

III. Is the Applicant entitled to $1,950.00 for other goods and services, recommended by Dr. Berge in a plan dated November 21, 2019?

IV. Is the Applicant entitled to $1,282.00 for physiotherapy, recommended by Francie Dore of South City Physio in a plan dated February 19, 2020?

V. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3Issue III, entitlement to a treatment and assessment plan dated November 21, 2019 was withdrawn. It is not at issue for this hearing.

4I find that the optometry and physiotherapy treatment and assessment plans in dispute are reasonable and necessary.

5I find that the speech-language pathology treatment and assessment plan is not reasonable and necessary.

ANALYSIS

6The Applicant was involved in two accidents within the span of a year. On December 20, 2017, she was the front-seat passenger of a vehicle that was struck by another vehicle on the driver’s-side (“the first accident”). On November 8, 2018, the Applicant was the driver of a vehicle which was struck from behind by another vehicle, pushing her vehicle into a vehicle in front of her, causing a second impact (“the second accident”).

7The Applicant sustained a concussion, whiplash associated disorder, and shoulder strain as a result of the first accident. Her post-concussion symptoms included headaches, photophobia, balance issues, dizziness, and cognitive issues such as mental fogginess and sensitivity to light and sound. She also experienced ongoing neck, back and shoulder pain.

8The Applicant’s post-concussion symptoms persisted, leading her family physician, Dr. A. Lightle, to refer her to the Acquired Brain Injury Clinic and Dr. P. Quaid, optometrist, whom she met with on May 9, 2018. From that assessment, Dr. Quaid diagnosed the Applicant with post-traumatic vision syndrome with mild convergence insufficiency, moderate vergence infacility, saccadic dysfunction, reduced depth perception, and decompensated exophoria with intermittent diplopia. Dr. Quaid prescribed prism glasses and recommended a course of neuro-visual rehabilitation with home therapy to be completed by the Applicant. The Applicant participated in the treatment proposed by Dr. Quaid. A progress report dated October 15, 2019 noted that the Applicant was “making good progress” but remained below baseline.

9The second accident worsened the Applicant’s sprain/strain and post-concussion symptoms. She reported issues such as headaches, eye strain, double or blurred vision, noise sensitivity, tinnitus, short-term memory and concentration issues, and right hip/side pain following the accident. The Applicant sought further treatment from Dr. Quaid, who proposed the disputed optometry plan, dated January 17, 2019.

The January 17, 2019 Optometry Treatment Plan in the amount of $3,970.00

10This treatment plan proposes 22 one-hour sessions, 7 brain tests, the rental of a syntonic light unit, and $95 fee for completing forms. The treatment aims to improve the Applicant’s symptoms and quality of life, improve headaches, light sensitivity, dizziness and occasional double vision.

11I find that this treatment plan is reasonable and necessary to treat her convergence insufficiency and occasional double vision.

12Dr. Quaid assessed the Applicant a few months after the first accident and diagnosed her with mild convergence insufficiency, reduced stereopsis, and impaired saccadic eye movements. According to Dr. Quaid’s CNRs and reports, these impairments result in tracking issues and can lead to dizziness and headaches.

13The Applicant engaged in vision therapy sessions on Dr. Quaid’s advice, following the assessment and report. A progress report by Dr. Quaid, dated October 15, 2019, notes that the Applicant completed 37 therapy sessions to-date. The progress report documents the Applicant’s baseline ocular motor data and compares it to her current data as well as the goal, or ideal, rating. The report notes that the Applicant is making progress but remains about 30% down from baseline. It highlights that the Applicant’s oculomotor function and visual processing skills improved, but that her visual fatigue overall remains an issue. Further treatment is recommended – 24 sessions, with the caveat that the Applicant be reassessed every 12 sessions.

14The Applicant participated in an ophthalmology insurer’s examination (“IE”) with Dr. C. Breslin, which led to a report dated November 4, 2019. Dr. Breslin assessed the Applicant and found normal ocular motility, no double vision, and no clinically significant photophobia. Dr. Breslin concluded that the Applicant experienced blurred vision and eye strain because she neglected to wear glasses despite being presbyopic and having an astigmatism, and because she suffers from dry eye disease.

15I prefer Dr. Quad’s opinion and report over Dr. Breslin’s. I appreciate that Dr. Quaid tested and noted an insufficiency in the Applicant’s convergence. Though the impairment was noted to be mild, Dr. Quaid’s report explains that the Applicant’s difficulty in coordinating her eyes to work together can lead to issues like double vision, eye discomfort, headaches, and fatigue.

16Dr. Breslin’s conclusion that the Applicant’s vision impairments are as a result of not wearing glasses fails to appreciate the treatment she participated in, and the gains made from it. As noted above, the Applicant engaged in dozens of treatment sessions following the 2017 accident and reported an improvement that was also documented in test scores. Dr. Breslin’s report does not account for the improvement from treatment. Considering that the Applicant continually engaged in treatment and experienced a measurable benefit from it, I struggle to understand Dr. Breslin’s conclusion that the Applicant’s impairments are as a result of not wearing glasses.

17The balance of the Applicant’s medical record supports Dr. Quaid’s opinion. For example, the Applicant complained of vision issues to Dr. Lightle multiple times in 2018 and noted the issues in a January 21, 2019 consultation with a brain injury clinic. Her consistent complaints of vision issues included discomfort with eye movement, blurred vision and missing items in sight, and difficulty focusing.

The November 24, 2020 Speech-Language Pathology Assessment Plan in the amount of $2,076.07

18This plan seeks funding to conduct what the Applicant characterizes as a high-level cognitive communication assessment. The Applicant submits that it is reasonable and necessary due to her ongoing cognitive difficulties as a result of the traumatic brain injury she sustained. To her, it is reasonable and necessary to have her information-processing and cognitive communication abilities assessed in light of her ongoing symptomology. The Respondent denied funding for this assessment because it found no compelling medical evidence in support of the assessment.

19I recognize that the Applicant sustained a traumatic brain injury and concussion and that, in certain occasions, such injuries may impact a person’s information processing and communication. However, I find no compelling contemporaneous evidence to support the Applicant’s claim that she suffers from these impairments to the extent that she requires a speech-language pathology assessment for the purpose of producing a treatment and assessment plan. As a result, I conclude that this treatment plan is not reasonable and necessary.

20Dr. Lightle’s CNRs include no compelling evidence of communication impairments that warrant an assessment. Dr. Lightle noted, on occasion, that the Applicant complained of symptoms of memory difficulty and ongoing post-concussion syndrome symptoms. However, Dr. Lightle’s CNRs do not show that the Applicant’s ability to communicate is impaired as a result of her accident related injuries. During the last encounters on record, dated September 1 and 4, 2020, Dr. Lightle indicated that a referral to a pain clinic was forthcoming, but made no comment or suggestion that a referral to a speech-language pathologist was necessary.

21The Applicant has provided few documents that are contemporaneous with respect to this treatment plan from November 2020. Dr. F. Muniz-Rodriguez, physician with the Acquired Brain Injury clinic, assessed the Applicant and reported back to Dr. Lightle on January 21, 2019. The report notes the Applicant’s complaints of cognitive difficulties for short term memory, attention, concentration, problem solving, but not any communication issues stemming from those impairments. Dr. Muniz-Rodriguez recommended physiotherapy, occupational therapy to assist the Applicant in her workplace, and the possibility of soft tissue injections. No referral or recommendation for speech-language pathology was made.

22The South City Physiotherapy progress report by Francine Doré, dated February 22, 2021, is contemporaneous, but in my view is uncompelling evidence in favour of a speech-language pathology assessment. The report notes that visual and vestibular deficiencies, rotator cuff dysfunction, and whiplash were her predominant injuries. Though I recognize that fogginess was noted in the progress report, this to me does not indicate that the Applicant has communication issues or that a speech-language pathology assessment is reasonable and necessary.

23The onus is on the Applicant to show that the speech-language pathology assessment is reasonable and necessary as a result of her accident-related injuries. She has not provided sufficient medical evidence to meet her onus on this issue and it is therefore not payable.

Is the applicant entitled to $1,282.00 for physiotherapy, recommended by Francie Dore of South City Physio in a plan dated January 14, 2020?

24This treatment plan seeks funding for 12 vestibular rehabilitation sessions with a physiotherapist. The goals of the plan are to reduce pain and increase range of motion, strength, balance, and proprioception. It also aims to return the Applicant to her work activities and activities of normal living.

25I find that this treatment plan is reasonable and necessary to treat the Applicant’s ongoing symptoms stemming from the traumatic brain injury sustained in the accidents.

26The MRI and SPECT scan of February 11, 2021 confirms that the Applicant sustained a traumatic brain injury. Dr. Y-H. Siow, radiologist, reviewed the imaging and concluded that, on a balance of probabilities, the Applicant sustained a traumatic brain injury.

27Dr. Lightle recommended that the Applicant engage in physiotherapy. This occurred in the summer of 2019 and the Applicant obliged. The Applicant engaged in the treatment plan and, from my review of the evidence, rarely complained of her accident-related injuries to Dr. Lightle during that period. However, the Applicant experienced an increase in pain symptoms when her treatment stopped. This is noted in Dr. Lightle’s CNRs, where in April 2020 the Applicant complained of a pain flare up and it was noted that her physiotherapy treatment stopped in late 2019. Post-concussion symptoms were also reported during a visit on September 1, 2020. The recommendation from Dr. Lightle is consistent with the recommendation from Dr. Robertson, otolaryngologist. Dr. Robertson recommended that the Applicant would benefit from vestibular physiotherapy in 2018.

28I prefer the other evidence over the opinion of Dr. G. Belchetz, otolaryngologist. Dr. Belchetz reviewed the Applicant’s medical record and issued a report dated August 7, 2020, which concluded that the Applicant’s symptoms were consistent with cervicogenic dizziness as well as persistent postural perceptual dizziness as a result of the subject accidents. However, Dr. Belchetz felt that the Applicant had undergone maximal central compensation and would therefore not benefit from the treatment because “vestibular rehabilitation after maximal central compensation has occurred is typically of low value.” This conclusion is uncompelling because, as noted by Dr. Lightle, the Applicant experienced an increase in symptoms during the period where she stopped engaging in vestibular therapy due to a lack of funding. Considering the positive impact treatment had on the Applicant and, conversely, the negative results when she stopped treatment, I find that further vestibular rehabilitation is reasonable and necessary.

ORDER

29The Applicant was involved in two motor vehicle accidents and sustained a traumatic brain injury and other injuries, including vision impairments, as a result. Considering her injuries and response to treatment, I find that the optometry and physiotherapy treatment and assessment plans in dispute are reasonable and necessary. The Applicant is entitled to payment for the incurred goods and services related to the treatment and assessment plans. If not incurred, the Applicant is entitled to consume the goods and services proposed in the plans and the Respondent is liable to pay for same once properly invoiced. The Applicant is entitled to interest pursuant to section 51 of the Schedule.

30There is insufficient evidence to show that the Applicant sustained an impairment with her communication as a result of accident-related injuries. Thus, I find that the speech-language pathology assessment plan is not reasonable and necessary.

31Interest is payable on the overdue payment of benefits pursuant to section 51 of the Schedule.