21-004428/AABS

Licence Appeal Tribunal File Number: 21-004428/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:

Yo Han Kwok

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Emily Morton

APPEARANCES:

For the Applicant:

Eric Katzman, Counsel

For the Respondent:

Darrell March, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Ho Yan Kwok, was injured in an accident on July 3, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”) from Wawanesa Mutual Insurance Company, the respondent.

2The respondent denied the applicant’s claim for $2,000 for optometric services and, as a result, the applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

3The following issues are to be decided:

(i) Is the applicant entitled to $2,000.00 for optometric services proposed by Dr. Huang in an OCF-18 dated January 20, 2021 and denied on March 22, 2021?

(ii) Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the applicant has not met the onus of proving the treatment plan proposed by Dr. Huang is reasonable and necessary. It is therefore not necessary to consider the other issues.

ANALYSIS

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 she seeks is reasonable and necessary.

Overview

6The motor vehicle accident occurred on July 3, 2017. The applicant sustained injuries to her neck, upper and lower back, and left arm, leg and ankle. She was diagnosed with a closed head injury. The applicant also suffers psychological impairments because of the accident. On November 27, 2020, the respondent conceded the applicant is catastrophically impaired as the s. 44 assessment reports concluded she had sustained three class four marked impairments, meeting the definition under s. 3.1(1) of the Schedule.

7There are peripheral references of vision-related issues by some of the assessors who evaluated the applicant. However, it was not until almost two years after the accident that the applicant’s family doctor referred her to an optometrist, Dr. Huang, for her vision issues. Dr. Huang saw the applicant on August 14, 2019, conducted some tests, and submitted a treatment plan for a further assessment of her vision issues for approval on January 20, 2021. The respondent did not conduct an independent medical assessment. The respondent denied the treatment plan on March 22, 2021.

8This dispute revolves around whether the applicant’s vision issues were caused by the accident. The applicant points to references in the medical and assessment documentation dating back to December 4, 2017, her claim assessors noted and recorded her reported deterioration of vision shortly after the accident. The respondent takes the position that the applicant did not really complain about vision issues until two years post-accident and therefore, she cannot meet the onus of proving the accident substantially caused the vision issues.

Preliminary Evidentiary Issue

9The applicant filed her own affidavit in support of the application, which was sworn on November 26, 2021. Cross-examination on the affidavit took place on December 16, 2021. No transcript of the cross-examination has been filed with the Tribunal and, evidently, no transcript has been produced. The respondent summarizes portions of the cross-examination in its written submissions rather than filing a transcript. The applicant objects to the respondent relying on any aspect of the cross-examination as evidence in the absence of the transcript.

10The Tribunal is entitled to rely on hearsay evidence (Statutory Powers Procedures Act, s. 15(1)). This is the route through which the respondent seeks to rely on responses by the applicant in cross-exemption, rather than taking the usual step of obtaining and filing a transcript. The Tribunal is also entitled to determine the appropriate weight to be given to the hearsay evidence. I have concerns about the passages in the respondent’s factum that purport to accurately summarize evidence given under oath. There is no indication of the source of the assertions in the factum, i.e., whether they come from notes of a person present, or are derived from an audio recording of the cross-examination. There is no way to determine the care taken to ensure the summary of the responses is accurate. The summaries are contained in written arguments on the application, an inherently adversarial document, and which does not constitute evidence. The Tribunal does not have access to the full responses given by the applicant, nor any re-examination that may have taken place considering these responses. For these reasons I do not rely the summary of the cross-examination contained at paragraph 15 and the discussion of the cross-examination at paragraphs 32, 33 and 37 of the respondent’s written submissions.

11This leads to the difficulty that the applicant’s affidavit itself is now, effectively, untested by cross-examination for the purpose of this application. This difficulty is overcome by the fact the affidavit provides very limited direct evidence on the live issue in this application. As explained below, even untested by cross-examination, the evidence in the affidavit itself that touches on the live issue of causation is conclusory and has been afforded little weight as a result.

Causation

12The test for causation in the accident benefits context is the “but for” test which acts as a screen to determine whether the applicant’s vision issues would have arisen but for the accident. The accident does not need to be “the cause” of the vision issues, but at least a “necessary cause.” The Tribunal considers the totality of the evidence in determining whether the applicant has met her burden: Sabadash v. State Farm et al., 2019 ONSC 1121, at para. 31.

13The applicant has not led any expert evidence that directly addresses whether the motor vehicle accident was a necessary cause of her reported vision issues. As the respondent fairly submits, none of the catastrophic impairment assessors note in their reports that the applicant complained of vision issues because of the motor vehicle accident. Rather, the applicant relies on her own evidence and records of her sporadic reporting of vision issues to various assessors and medical practitioners in the years that followed the motor vehicle accident.

14The Tribunal places little weight on the applicant’s own evidence that she experiences vision issues because of the accident. The relevant portion of her affidavit evidence is:

I sustained several injuries, including my neck, upper and lower back, left arm, left leg, and left ankle. As a result of the motor vehicle accident, I experience debilitating anxiety. I sustained a closed head injury and still suffer from symptoms that include including (sic) headaches, dizziness, nausea, vertigo, photophobia, difficulty concentrating, double vision, numbness in my arms, hands and fingers, sharp pains in my left leg and memory issues. I have significant issues with reading. Dr. Huang has told me that vision therapy will likely improve my symptoms, which were caused by the car accident. I hope to be able to read more frequently and for longer after my therapy. [Emphasis added].

The applicant also claims that her family doctor referred her to Dr. Huang “for my double vision” in August of 2019. The balance of the affidavit sets out the history of the file to append exhibits and expresses the applicant’s frustration over this denial of benefits.

15The applicant’s evidence that her vision-related symptoms of double vision and “significant issues with reading” were “caused by the car accident” is a conclusory statement. The applicant does not offer evidence about whether she had difficulty with reading or double vision before the accident, nor does she provide any sort of timeline of the onset or deterioration of these symptoms following to the accident. She does not attribute the opinion these symptoms were “caused by the car accident” to any one of the medical professionals who have assessed her in the years following the car accident. I place no weight on this affidavit evidence as it relates to causation.

16The applicant relies on evidence found in the clinical notes of assessors and treatment providers that support an inference the vision issues would not have arisen but for the accident. I also find this evidence does not meet the burden of proving causation.

17The most compelling evidence with respect to causation comes from records of occupational therapists. Nicole Wilkins, an occupational therapist who assessed the applicant notes on December 4, 2017, the applicant’s report “[t]hings look blurry and I have trouble reading music and small print.” An insurer’s orthopaedic assessor summarizes a January 9, 2018 note by Ms. Wilkins that states the applicant has “post-concussive symptoms such as attention, memory, slowed thinking, headaches, sleep disturbance, and blurred vision.” The applicant also points to an entry from an occupational therapist (an independent assessor), dated May 28, 2020, which states the applicant “reports that her vision decreased markedly” and “she now extremely instances (sic) of blurry vision when she attempts to concentrate her gaze on reading words and music notes.” It also reports nausea and dizziness with writing and reading.

18However, this evidence linking the applicant’s vision issues to the accident cannot be viewed in isolation. Several assessors saw the applicant and there is no mention of vision issues in their reports provided on the catastrophic impairment issue. As well, it bears noting that in a later report, dated August 1, 2018, Ms. Wilkins addressed the applicant’s post-concussive symptoms but did not note any that were vision-related symptoms and mentioned only “headaches, attention, memory, and planning/organization” as symptoms in her report. As well, Ms. Wilkins recommended the applicant have her vision assessed in 2017, though the applicant did not see the optometrist until 2019.

19The applicant also points to the January 16, 2020 report of Dr. Muhlstock, a physiatrist, who provided an independent medical examination and diagnosed the applicant with a closed head injury. However, the portion of the report the applicant relies on does not speak to vision-related symptoms. It reports headaches along with “dizziness, difficulty concentrating, photophobia and phonophobia.”

20Also problematic is the fact the applicant’s reports of vision issues to her own family doctor are inconsistent. The applicant’s family physician notes on May 21, 2019, almost two years post-accident, that the applicant “has not had her eyes checked for many years” and she should have an eye examination. On July 23, 2019, the physician notes a report of photophobia and phonophobia, but does not record a complaint about vision issues. On July 2, 2020, the applicant’s physician notes the applicant had an eye examination with a Dr. Wong and it came back clear. The physician’s notes in August of 2020, now over three years post-accident, state that the applicant felt her eyes had changed in the past week, with worsening vision at night for a few minutes.

21I also have difficulty concluding the clinical notes of Dr. Huang aid in determining causation. The August 4, 2019 notes record: “car accident – 2017; vision changed after” and records the applicant “feels dizzy, blurry, double” when wearing glasses. In her reply submissions, the applicant submits the OCF-18 itself “walks the reader through why this is accident related.” It is not clear how this is the case. The OCF-18 states the applicant had a “concussion” as a direct result of the accident. In describing how the impairments from that injury impact her actives of normal life, it states “patient has notices, poor memory, diplopia, visual discomfort, headaches, light sensitivity, and poor reading comprehension.” There is no explanation in the OCF-18 or Dr. Huang’s clinical notes as to how the vision impairments arise “from” that injury, i.e. the concussion. The clinical notes and OCF-18 are conclusory in this regard.

22On one hand, Dr. Huang’s note that the applicant reported her “vision changed after” the accident can be interpreted as evidence in support of causation; the applicant clearly links trouble with her vision to the accident. However, the Tribunal must consider the totality of the evidence. I have difficulty reconciling a report made by the applicant to Dr. Huang over two years after the accident that serious vison issues arose following the accident with the lack of any report of vision problems to her family doctor until 2020 and a clear examination in 2020.

23Finally, the applicant relies on correspondence sent by her case manager, a registered nurse, to the respondent on March 23, 2021. The correspondence attaches an article concerning visual dysfunction following a traumatic brain injury and asks the respondent to reconsider its denial of the claim as the applicant experienced symptomatology referenced in the article. I fail to see the relevance of this article in determining causation in the applicant’s case. The applicant was deemed catastrophically injured due to psychological impairments.

24I am not satisfied on a balance of probabilities that the applicant’s reported vision issues were caused by the accident. The referral to Dr. Huang was not made until two years after the accident. The proposed assessment post-dates the accident by three and a half years. There are sparse and sporadic references to the applicant reporting problems with her vision in the voluminous record of medical evidence before the Tribunal. This includes thorough assessments and reports in relation to the catastrophic impairment issue. The applicant did not report issues with her vision to her family physician until two years after the accident and, even then, received a clear eye examination conducted by a different doctor. The statements in the applicant’s affidavit that the accident caused her eye problems is conclusory. The statement in the OCF-18 that the applicant’s vision-related impairments arise from the concussion from the accident is also conclusory and based on the applicant’s self-report as recorded in Dr. Huang’s clinical notes.

25As I have found the applicant has not established the injuries she seeks to have assessed were caused by the accident, she is not entitled to the treatment plan in dispute.

Interest and Award

26As there are no benefits payable, the applicant is not entitled to interest or an award.

ORDER

27The application is dismissed.