Bywater v. Wawanesa Mutual Insurance Company, 2022 CanLII 38869

Bywater v. Wawanesa Mutual Insurance Company

Citation: Bywater v. Wawanesa Mutual Insurance Company, 2022 ONLAT 20-008159/AABS

Licence Appeal Tribunal File Number: 20-008159/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:

Bethany Bywater

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Alexandra Patruno, Paralegal

For the Respondent: Nicholas M. Wine, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1The applicant was involved in an automobile accident on January 18, 2015. The applicant was a seat-belted front passenger in a Dodge Ram pickup truck that was struck from behind by another vehicle. The vehicle’s airbags did not deploy, she did not lose consciousness, nor did emergency services attend the scene of the accident. The applicant submits she struck the back of her head on the headrest and her body jolted from back to front. The applicant submits she continues to suffer post-concussive symptoms including dizziness, headache, nausea, neck pain, back pain, anxiety, and post-traumatic stress disorder.

2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3Wawanesa has approved treatment beyond the treatment limits of the Minor Injury Guideline² on the basis of the applicant’s psychological injuries.

4A case conference was held on December 2, 2020 and a written hearing was scheduled.

ISSUES

5The following issues are to be decided:

i. Is the applicant entitled to $3,012.00 for vision therapy and eyeglasses submitted via an Expense Claim Form (OCF-6) dated July 27, 2018?

ii. Is the applicant entitled to $2,750.72 for physiotherapy services recommended by Alexmuir Wellness Centre Inc. as per the treatment plan (OCF-18) dated October 12, 2019?

iii. Is the applicant entitled to $503.90 ($2,200.00 less $1,696.10 approved) for a psychological assessment recommended by Alexmuir Wellness Centre Inc. as per OCF-18 dated October 31, 2019?

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

RESULT

6I find that the applicant is not entitled to:

i. $3,012.00 for vision therapy and eyeglasses;

ii. $2,750.72 for physiotherapy services;

iii. The cost of a psychological assessment in the remaining amount of $503.90; and

iv. Interest on any overdue payment of benefits.

ANALYSIS

Are the Treatment Plans Reasonable and Necessary?

7Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

8I find that the applicant has not met her onus of proving entitlement to the proposed treatment by proving that the expenses set out in the July 27, 2018 OCF-6 and the OCF-18s are reasonable and necessary on a balance of probabilities.³

Vision Therapy and Eyeglasses - $3,012.00

9The applicant self-reported episodes of blurred vision and being unable to look at a screen for longer than 20 minutes to her Family Physician, Dr. David Lowe in January and February 2015.⁴ Similarly, the applicant reported to Dr. Leon Steiner, Neuropsychologist, that she suffered from vision changes and temporary blindness when assessed in November 2019.⁵

10The OCF-6 dated July 27, 2018 only lists the expenses claimed for vision therapy.⁶ However, the OCF-18 dated October 23, 2015 submitted by Dr. Ramesh, Optometrist, cited headaches and blurred vision and trouble studying or focusing.⁷ However, in the August 2015 Evaluation of Visual Development, Dr. Ramesh failed to establish any nexus between the 2015 accident and the treatment for vision therapy and eyeglasses.⁸

11Conversely, Dr. G. N. Miller, Optometrist, conducted an Insurer’s Examination (“IE”) on August 17, 2016⁹ and concluded that proposed expense was not reasonable and necessary given that no accident-related vision impairment was identified. Specifically, it was found the applicant did “not have strabismic binocular dysfunction, binocular function was well withing normal limits and the small amount of exophoria was not the result of any impairment to her eyes, adnexa, or visual systems sustained in the subject accident.”¹⁰ Finally, Dr. Miller recommended an upgraded pair of glasses to assist her with reading in comfort and clarity.

12The applicant has not established on a balance of probabilities that any visual impairments suffered were tied to the subject accident. The applicant’s history of head injuries and concussive events is well-documented, including a previous concussion and mild traumatic brain injury (“TBI”). In fact, Dr. Westbrook, Neurologist, indicated on January 15, 2015 (just three days prior to this accident) that the applicant continued to have residual TBI symptoms from the previous concussion sustained in January 2014.¹¹

13Given the totality of evidence, the applicant failed to provide on a balance of probabilities that the proposed vision therapy and eyeglasses are reasonably necessary and, therefore, she is not entitled to payment of the July 27, 2018 OCF-6.

14Given this finding, it is not necessary to address the limitation issue raised by the respondent and related to the October 25, 2015 OCF-18 submitted by Dr. Ramesh.¹²

Physiotherapy Services - $2,750.72

15The thrust of the applicant’s submissions and evidence regarding psychological symptoms relate to a potential concussion sustained as a result of the accident. There are otherwise few references to the applicant’s physical injuries. However, on August 21, 2017, Dr. Lowe indicated that the applicant required occupational therapy, speech therapy assessments, and ongoing psychotherapy, and physiotherapy.¹³ Similarly, Dr. Steiner, Neuropsychologist opined that her current neurological, psychological, and cognitive impairments are directly the result of the subject accident.¹⁴

16Conspicuously absent in the applicant’s evidence is an assessment of her physical conditions related to the soft tissue injuries including Whiplash Associated Disorder – WAD II, neck pain, or back pain that could all be treated through physiotherapy. No evidence has been provided to identify how the goals outlined in the OCF-18 – pain reduction, increase in strength, increase in range of motion or a return to activities of normal living – would be accomplished through additional physiotherapy.¹⁵

17However, Wawanesa has provided two persuasive physiatry reports generated as a result of insurer’s examinations. The first examination was conducted by Dr. Bentley on September 21, 2015. At that time the applicant reported she had improved 60-70% from her accident-related injuries and that she had attended Athletes Core Sports Medicine Centres for physical therapy twice a week. Dr. Bentley concluded the applicant did not require any additional treatment or investigations and there was no persisting impairment from a musculoskeletal perspective.¹⁶

18Dr. Banghu conducted a second Physiatry Assessment on January 8, 2020. He identified soft tissue injuries to her back and neck but indicated that almost five years had passed since the accident and maximum therapeutic benefit had been reached. He did not find additional physiotherapy reasonable and necessary as a result of the accident. He further indicated that she should continue to complete her home-based exercise program that included stretching and strengthening exercises.¹⁷

19I find the two physiatry IE assessment reports provided by Wawanesa more persuasive than the applicant’s lack of responding reports related to the soft tissue injuries to her back and neck, or that speak to the potential goals of physiotherapy. On the evidence, I find that the applicant has not met her onus on a balance of probabilities to establish that additional physiotherapy treatment is reasonably necessary and, as a result, she is not entitled to the October 12, 2019 OCF-18.

Cost of a Psychological Assessment - $503.90

20The OCF-18 prepared by Dr. Leon Steiner, Psychologist, sought $2,200.00 for a psychological assessment.¹⁸ On December 30, 2019, Wawanesa partially approved this treatment plan in the amount of $1,696.10, or the cost of 10 hours of clinical time to perform the assessment. This left $503.90 remaining in dispute.

21Dr. Steiner conducted a Neuropsychological Assessment of the applicant on November 3, 2019. Following testing, he determined the applicant fell within the severe range for depression and the moderate range for anxiety.¹⁹ However, he had difficulty parsing out what role prior concussions play in her current condition and restricted function. He concluded that she had made little sustainable progress in five years and would likely not return to her pre-accident social and recreational activities.²⁰

22Dr. Mandel, Psychologist, conducted a Psychological IE on December 3, 2019. He concluded that the applicant met the DSM²¹ criteria for Adjustment Disorder with mixed anxiety and depressed mood. Given this diagnosis, he determined the applicant fell outside of the treatment limits of the MIG. However, he determined that $2,200.00 was excessive for the cost of an assessment. Instead, he specified that 10 hours of clinical time would be sufficient to conduct the assessment, therefore $1,696.10 was reasonable and necessary for this treatment plan.²²

23Again, the applicant has the burden of proving that the $503.90 remaining is reasonable and necessary to conduct the assessment. Although neither expert disputes that the applicant requires an assessment, the applicant has failed to establish this additional amount is reasonably necessary pursuant to the Schedule.

24After reviewing the evidence, I am still left with questions as to why the amount of $2,200.00 is required, or how this amount is apportioned in relation to the assessment. Aside from the standard breakdown of costs on the OCF-18 form, I have no idea how the $2,200.00 amount for the assessment was calculated. For instance, how many clinical sessions would this amount cover? Especially in light of the breakdown provided by the respondent (10 sessions at the rate of $169.61 per session). Even if I add the $200.00 cost of completing the forms to the sum of $1,696.10, I am still unable to calculate how the applicant arrived at the sum of $2,200.00.

25On the evidence, I find that the applicant has failed to establish that the unapproved portion of the October 31, 2019 is reasonably necessary pursuant to the Schedule. Therefore, the balance of the treatment plan in the amount of $503.90 is denied.

Interest

26As no payments are overdue, no interest is payable.

ORDER

27The application is dismissed and the applicant is not entitled to:

i. $3,012.00 for vision therapy and eyeglasses;

ii. $2,750.72 for physiotherapy services;

iii. The cost of a psychological assessment in the remaining amount of $503.90; and

iv. Interest on any overdue payment of benefits.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
4. 4Clinical Notes and Records of Dr. David Lowe, Applicant’s Written Submissions, Tabs 1 and 3.
5. 5Neuropsychological Assessment Report of Dr. Steiner, Applicant’s Written Submissions, Tab 5.
6. 6OCF-6 dated July 27, 2018, Written Submissions of the Respondent, Tab 34.
7. 7OCF-18 dated October 23, 2015 by Dr. Ramesh, Written Submissions of the Respondent, Tab 37.
8. 8Clinical Notes and Records of Dr. Ramesh, Vision Care Center, Applicant’s Written Submissions, Tab 2.
9. 9Insurer’s Examination prepared by Dr. Miller dated August 29, 2016, Written Submissions of the Respondent, Tab 36.
10. 10Ibid., pg. 5.
11. 11Neuropsychological Assessment Report of Dr. Steiner, Applicant’s Written Submissions, Tab 5.
12. 12Written Submissions of the Respondent, para. 19.
13. 13Clinical Notes and Records of Dr. David Lowe, Applicant’s Written Submissions, Tab 3.
14. 14Neuropsychological Assessment Report of Dr. Steiner, Applicant’s Written Submissions, Tab 5.
15. 15Insurer’s Physiatry Report prepared by Dr. Bentley dated September 21, 2015, Written Submissions of the Respondent, Tab 20.
16. 16Ibid.
17. 17Insurer’s Physiatry Report prepared by Dr. Banghu dated January 14, 2020, Written Submissions of the Respondent, Tab 29.
18. 18OCF-18 prepared by Dr. Steiner dated October 31, 2019, Written Submissions of the Respondent, Tab 43.
19. 19Neuropsychological Assessment Report of Dr. Steiner, Applicant’s Written Submissions, Tab 5.
20. 20Ibid.
21. 21Diagnostic and Statistical Manual of Mental Disorders (“DSM”).
22. 22Insurer’s Psychological Report prepared by Dr. Mandel dated December 3, 2019, Written Submissions of the Respondent, Tab 29.