Licence Appeal Tribunal File Number: 20-009748/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:
Tamara Wilkinson
Applicant
and
Northbridge General Insurance Corporation
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Brent Vallis, Counsel
For the Respondent:
Jennifer McGlashan, Counsel
HEARD:
BY WAY OF WRITTEN SUBMISISONS
OVERVIEW
1Tamara Wilkinson, the applicant, was involved in an automobile accident on July 3, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Northbridge General Insurance Corporation, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The parties attended case conferences on January 28, 2021, March 16, 2021 and September 14, 2021. At the March 16, 2021 case conference, the applicant sought to add the issue of catastrophic impairment (“CAT”) determination to the application. As the applicant had not attended all Insurer Examinations (“IEs”) with regards to the CAT issue, the respondent was not in agreement to add CAT. The parties agreed to a resumption date of September 14, 2021 to deal with adding the issue of CAT determination, if all IEs were complete at that time.
3At the September 14, 2021 resumption, the parties confirmed that the applicant had not yet attended all the IEs. As such, the issue of CAT determination was not added, and the parties agreed to move forward with a written hearing for the issues currently in dispute.
PRELIMINARY ISSUE – RESPONDENT’S MOTION
4By way of Notice of Motion dated August 4, 2022, the respondent requested that the following preliminary issues be added to this written hearing. It requested:
i. An order dismissing the applicant’s application due to missed IEs; or,
ii. In the alternative, an order staying the application pending the completion of the outstanding IEs.
5The respondent submits that the applicant failed to attend three properly scheduled IEs – a neurology IE, an Occupational Therapy (“OT) assessment, and an OT situational examination. These IEs were initially scheduled in May and August 2021 and were subsequently rescheduled to September, November and December 2021 dates, which the applicant also failed to attend. The applicant does not dispute that these IEs are reasonably necessary or that she failed to attend, although she cites personal hardship and unforeseen circumstance as reasons for her non-attendance.
6Although the respondent raises the applicant’s non-attendance at properly scheduled IEs as a preliminary issue, I do not find that this non-attendance is relevant to the substantive issues currently in dispute in this written hearing. The IEs that the applicant failed to attend were identified as being outstanding IEs for CAT determination and possibly attendant care services, neither of which are issues in dispute in this written hearing. These missed IEs were scheduled more than a year, and in some cases three years after the treatment plans in dispute in this hearing were denied.
7When reviewing the respondent’s denial letters and Explanation of Benefits (“EOBs”) for the treatment plans and claim form in dispute, it is clear that these denials were not based on neurology or occupational therapy IEs, nor were such IEs requested by the respondent to assess these claims. In its evidence for the substantive issues in dispute, the respondent has submitted multiple IE reports relevant to the issues in dispute. There does not appear to have been any issue with the applicant’s attendance at the previous IEs for the relevant treatment plans and claim form. Further, the respondent has not provided any submissions or evidence as to how it is prejudiced in its ability to respond to the current issues in dispute, by the applicant’s non-attendance at IEs for entirely different issues.
8The respondent cites Tribunal caselaw arguing that s. 55(1)2 of the Schedule acts as a statutory bar to an applicant proceeding with an application when an applicant fails to comply with a s. 44 IE request. However, I note that in all of the decisions cited by the respondent, the applicant had failed to attend IEs for the issues that were currently in dispute in those hearings. In two of the decisions, the applicant had failed to attend CAT IE assessments, when CAT determination was an issue in dispute. This is not the case in the matter at hand. I do not find that s. 55(1)2 acts as an absolute bar from the applicant proceeding with any issue in dispute, where there has been non-attendance at IEs for completely unrelated claims.
9Further, with respect to the respondent’s request that the application be stayed pending the applicant’s attendance at the outstanding CAT assessments, I also do not find that this is necessary. Both parties appear to have provided substantial evidence on the reasonableness and necessity of the proposed treatment plans and the respondent has not provided any submissions as to what additional information would be required from the outstanding CAT assessments to properly defend against the current claims. As such, there is no reason to stay the application and the written hearing may proceed on the issues currently in dispute.
10As such, I dismiss the respondent’s motion, without prejudice to the respondent to renew the motion in the future.
SUBSTANTIVE ISSUES
11The issues in dispute are:
i. Is the applicant entitled to a chronic pain assessment in the amount of $2,010.10, proposed in a treatment plan (“OCF-18”) dated August 10, 2018?
ii. Is the applicant entitled to a functional oculo-visual assessment in the amount of $1,400.00, proposed in an OCF-18 dated January 9, 2019?
iii. Is the applicant entitled to a vision therapy assessment in the amount of $3,400.00, proposed in an OCF-18 dated July 27, 2020?
iv. Is the applicant entitled to a neuropsychological assessment in the amount of $6,010.00, proposed in an OCF-18 dated January 21, 2019?
v. Is the applicant entitled to chiropractic treatment in the amount of $1,977.05, proposed in an OCF-18 dated October 31, 2018?
vi. Is the applicant entitled to chiropractic treatment in the amount of $1,384.70, proposed in an OCF-18 dated January 17, 2019?
vii. Is the applicant entitled to chiropractic treatment in the amount of $1,821.94, proposed in an OCF-18 dated August 26, 2020?
viii. Is the applicant entitled to transportation expenses and cannabis oil in the amount of $1,549.12 submitted in an OCF-6 dated January 7, 2019?
ix. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for a psychological assessment, proposed by Fahimeh Aghamohseni in an OCF-18 dated August 24, 2020?
x. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
xi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
12I find that:
i. The applicant is entitled to the OCF-18 dated January 9, 2019, in the amount of $1,400.00 for a functional oculo-visual assessment, plus interest in accordance with s. 51 of the Schedule;
ii. The applicant is entitled to the OCF-18 dated October 31, 2018, for chiropractic treatment in the amount of $1,977.05, plus interest in accordance with s. 51 of the Schedule;
iii. The applicant is entitled to a portion of the OCF-6 dated January 7, 2019 for cannabis oil and medical marijuana, plus interest in accordance with s. 51 of the Schedule. The applicant is not entitled to remaining portion of the OCF-6;
iv. The applicant is not entitled to the remaining treatment plans in dispute;
v. The applicant is not entitled to an award.
treatment plans
13To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
The applicant has not established entitlement to the OCF-18 for a chronic pain assessment
14The applicant submitted an OCF-18 dated August 10, 2018 for a chronic pain assessment, in the amount of $2,010.10.
15I agree with the respondent’s submissions that the applicant has not established why a chronic pain assessment was reasonable and necessary only one month after the accident. In the OCF-18, Dr. Wilderman states that the assessment is necessary, given the “time that has passed since the accident”. However, I find the decision cited by the respondent, Barroilhet v. Aviva General Insurance, 2021 CanLII 43539 (ON LAT), to be persuasive on this issue.
16In Barroilhet, the adjudicator referenced the oft-cited definition of chronic pain, as being “ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual’s well-being”. The applicant had submitted this OCF-18 only one month after the subject accident. I agree with the respondent that this was still a period of acute injury and at this point, it was premature to conduct a chronic pain assessment.
17The applicant did not provide any specific submissions or evidence on this treatment plan or provide an explanation as to why a chronic pain assessment was warranted only a month post-accident. Without any specific submissions to rebut the respondent’s argument that the chronic pain assessment was premature only one-month post-accident, I find that the applicant has not established that the OCF-18 was reasonable and necessary at the time of submission.
The OCF-18 for a functional oculo-visual assessment in the amount of $1,400.00, is reasonable and necessary
18The applicant submitted an OCF-18 dated January 9, 2019 for a functional oculo-visual assessment. The stated goals of the assessment were to: identify and assess visual symptoms since the accident, reduce headaches, light and noise sensitivity, burning, stinging and watering eyes.
19The respondent denied the assessment relying on the IE of its optometrist Dr. Harvey Mayers. Dr. Mayers opined that the assessment was not reasonable and necessary and that a majority of the applicant’s headaches and blurred vision could be alleviated with new prescriptions.
20I find that the applicant has adduced sufficient evidence that the proposed visual assessment is reasonable and necessary. The applicant was diagnosed with a concussion at the time of the accident. The CNRs of the applicant’s family physician, Dr. Clark, indicate that for months post-accident, the applicant complained of persistent headaches, dizziness, and visual impairments including light sensitivity. The OCF-18 proposed a comprehensive assessment to determine areas of visual dysfunction.
21Although the respondent denied the treatment plan relying on Dr. Mayers’ IE report, Dr. Mayers did note ocular limitations during his assessment, although he could not determine whether there was an ocular impairment due to the MVA. However, Dr. Mayers did state that it may be possible that the concussion exacerbated the applicant’s pre-accident condition of hyperopic astigmatism and reduced amplitude of accommodation. Dr. Mayers concluded that if the symptoms continued to persist, then a functional vision examination could be considered.
22Given that the applicant had been reporting such symptoms for six months post-accident, and that Dr. Mayers found that the concussion may have exacerbated pre-accident conditions, I find that the applicant has met her burden to prove that the proposed assessment is reasonable and necessary.
The OCF-18 dated July 27, 2020 for a vision therapy assessment is not reasonable and necessary
23The applicant submitted a subsequent OCF-18 in the amount of $3,400.00 for a vision therapy assessment and new glasses. The OCF-18 was supported by the report of Dr. Jason Chan, optometrist, who opined that the applicant had “suspected post trauma vision syndrome”. The respondent denied the treatment plan on the basis of its s. 44 assessment by Dr. Robert Adam, ophthalmologist.
24As I have already found that the prior functional oculo-visual assessment is reasonable and necessary, the applicant has not provided any submissions as to why this second vision therapy assessment is reasonable and necessary as well. No submissions were provided by the applicant as to the differences between the two assessments and why both were required. I find that it would be appropriate to complete the previously approved functional oculo-visual assessment, to determine what, if any, additional vision assessments were required.
25Further, although I found that at the time the previous OCF-18 was submitted the applicant was consistently reporting vision disturbances, the applicant does not direct me to any evidence that she continued to report similar impairments at the time this OCF-18 was submitted, eighteen months later. In addition, I find the s. 44 IE of Dr. Adam to be persuasive. Dr. Adam found that the applicant had normal ocular examination for each eye and normal binocular vision. Although it was noted that the applicant had refractive error and poor accommodation, Dr. Adam opined that this was mostly likely related to age, and not the MVA. He also held that any such impairments could be corrected by glasses and that the applicant had previously worn glasses prior to the accident for both distance and near vision.
26The applicant has not led any medical evidence or provided any submissions to refute Dr. Adam’s findings. As such, I find that the applicant has not established that the proposed vision therapy assessment is reasonable and necessary.
The OCF-18 for a neuropsychological assessment is not reasonable and necessary
27The applicant submitted an OCF-18 in the amount of $6,010.00 for a neuropsychological assessment. The respondent partially approved this treatment plan, finding that a neuropsychological assessment would be reasonable and necessary to address the applicant’s post-concussive features, subjective concerns with respect to cognitive proficiency and prior mental health history. As such, the OCF-18 was partially approved in the amount of $4,010.00. The only portion that was not approved was $2,000.00 for psychological testing, as the respondent submits that the applicant had already completed extensive psychological assessments.
28The onus rests with the applicant to establish the reasonableness and necessity of the outstanding balance of the OCF-18. The applicant has not provided any submissions or evidence to support her claim that the additional psychological testing is required, in addition to the multiple assessments already conducted. No submissions were provided to refute the respondent’s argument that two psychological assessments were already conducted, along with a psychiatric assessment and psychotherapy treatment. In the absence of submissions from the applicant on this issue, I find that the applicant has not adduced sufficient evidence to establish entitlement to the remaining balance of the treatment plan.
The OCF-18 for chiropractic treatment dated October 31, 2018 in the amount of $1,977.05 is reasonable and necessary
29The applicant submitted the OCF-18 dated October 31, 2018 for nine sessions of chiropractic, massage and physical therapy treatment. The stated goals of treatment included pain reduction, increased range of motion (“ROM”) and increase in strength.
30The respondent denied the proposed treatment on the basis of the IE assessment of Dr. Sandhu, physician, who found that while the applicant did still have some ongoing restrictions in her ROM in her right shoulder, she did not show any significant accident-related pathology. Dr. Sandhu found that given the applicant’s soft-tissue injuries and the length of time since the accident, she had likely achieved maximum therapeutic benefit and that further facility-based treatment was not reasonable and necessary.
31Although the respondent submits that the applicant would not gain any significant benefit from continuing treatment, I find that there is sufficient medical evidence that a further course of treatment is reasonable and necessary. Relatively contemporaneous with the submission of the OCF-18, the applicant’s family physician Dr. Clark noted that the applicant was receiving massage and physiotherapy treatment and that she was very slowly progressing. Dr. Sandhu also noted in his IE assessment that the applicant’s restricted ROM in the right shoulder was likely a temporary impairment and that her ongoing adherence to an ongoing exercise program would likely lead to significant improvement over the following eight weeks. Although Dr. Sandhu felt that this exercise program could be conducted at home, given that the OCF-18 was submitted only three months post-accident, the applicant’s ongoing impairment and pain reports, I find that a further course of facility-based treatment was reasonable to solidify her incremental gains.
The applicant has not established entitlement to the OCF-18 dated January 17, 2019 for chiropractic treatment in the amount of $1,384.70
32The applicant submitted an additional OCF-18 dated January 17, 2019 for another course of chiropractic, massage and physical therapy treatment in the amount of $1,384.70. The respondent denied the OCF-18 on the basis of its previous IE assessment of Dr. Sandhu, completed on December 28, 2018.
33The applicant submits that the respondent’s denial was not in accordance with s. 38(8) of the Schedule. I disagree. In its denial letter dated January 29, 2019, the respondent clearly stated that this OCF-18 was being denied on the basis of Dr. Sandhu’s IE report. It referenced its previous letter dated January 4, 2019 (sent only three weeks earlier), which had summarized Dr. Sandhu’s findings and included his report. I find that the reasons why the respondent was denying the treatment plan were clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue, in accordance the Schedule and with the principles set out in T.F. v. Peel and Hedley, 2018 CanLII 39373.
34The applicant has not provided any additional submissions as to why a further course of treatment is reasonable and necessary. Although I found that the prior OCF-18 dated October 31, 2018 for similar sessions of chiropractic, massage and physical therapy treatment was reasonable and necessary to consolidate previous gains, the applicant has not met her onus to show that such ongoing treatment was still warranted.
35No submissions or evidence were provided by the applicant to show how the stated goals of treatment were being met to a reasonable degree. The additional comments in the OCF-18 appear to indicate a worsening of symptoms, when compared to the previous OCF-18 dated October 31, 2018, both in increasing pain complaints and in further restriction to ROM. The applicant has not submitted any progress notes or treatment records from the treating clinic, indicating what progress was being made. Without any submissions or evidence from the applicant that the stated goals of pain reduction, increased ROM and increase of strength were being met to a reasonable degree, the applicant has failed to establish that the OCF-18 in dispute is reasonable and necessary.
The applicant has not established entitlement to the OCF-18 dated August 26, 2020 for chiropractic treatment in the amount of $1,821.94
36The applicant submits that she is entitled to $1,821.94 for chiropractic treatment, submitted in an OCF-18 dated August 26, 2020. However, the applicant has failed to submit this OCF-18 as evidence, and no details were provided in the applicant’s submissions as to the proposed treatment. The applicant has not indicated what type of treatment modalities were proposed, the number of sessions, what impairments were proposed to be treated or what the stated goals were of treatment. Without such information, I am unable to assess the reasonableness and necessity of the proposed treatment.
37Although an OCF-18 dated August 26, 2020 was submitted in the applicant’s document brief, this appeared to be for an occupational therapy assessment. However, both the applicant and the respondent only provided submissions on an OCF-18 of that date for chiropractic treatment, and an occupational therapy assessment was not identified as being an issue in dispute.
38Further, the applicant has not directed me to any medical evidence that chiropractic treatment was recommended by her treating physicians two years post-accident. In her evidence, the applicant submits an orthopedic CAT assessment by Dr. Getahun, which was conducted soon after the OCF-18 was submitted, in September 2020. Dr. Getahun diagnosed the applicant with chronic pain, along with impairments in the right shoulder and spine. However, in response to the question of what treatment would be recommended, Dr. Getahun did not propose chiropractic treatment. Rather, his recommendation was for a multidisciplinary chronic pain program and corticosteroid injections.
39As such I find that the applicant has not met her onus to prove that the chiropractic treatment proposed in an OCF-18 dated August 26, 2020, is reasonable and necessary.
The OCF-6 dated January 7, 2019 for cannabis oil and transportation expenses is partly reasonable and necessary
40The applicant submitted a claim form dated January 7, 2019 for various transportation expenses, as well as medical marijuana and CBD oil. The respondent submits that neither expense is reasonable and necessary. It contends that the applicant has not led any evidence that she travelled to treatment appointments or that she had travelled beyond the 50km round trip deductible specified in the Superintendent’s Guideline No. 04/16: Transportation Expense Guideline. The respondent further submits that the medical records do not show that the applicant sustained any benefit from cannabis oil for her accident-related injuries.
41I find that the applicant has not established entitlement to the transportation expenses, however, the medical evidence does establish that the CBD oil and medical marijuana is reasonable and necessary. The applicant has provided no evidence or submissions as to the transportation expenses and whether the distances travelled exceeded the 50km round trip. Without such evidence I find that the applicant has not met her onus to prove that the expenses are reasonable and necessary.
42With respect to the expenses claimed for CBD oil and medical marijuana, I find that the medical record does establish that the applicant reported that these products helped to alleviate her accident-related pain complaints. The applicant reported to her family physician a number of times that she did not want to take opiates for pain, as she had addiction and dependency issues in the past. She further reported to Dr. Wilderman, her chronic pain physician that she took CBD oil for the pain. Dr. Wilderman did not discourage this treatment and in two of his CNR entries, CBD and medical marijuana were added to the list of active medications. As such, I find that the listed expenses for medical marijuana and CBD oil are reasonable and necessary.
The applicant has not established entitlement to the OCF-18 dated August 24, 2020 for a psychological assessment
43The respondent submits that the proposed psychological assessment is not reasonable and necessary, as the applicant had already been under the care of a psychiatrist for a number of years, had received psychiatric counselling and psychotherapy and had undergone a psychiatric assessment and psychological testing.
44The applicant has not provided any detailed submissions or evidence with respect to this OCF-18 or to refute the respondent’s argument that this assessment was redundant. The applicant’s only submission with respect to the proposed assessment was that it was incurred fully “but it was later approved according to the clinic”. As such, it appears from the applicant’s submissions that the psychological assessment was already approved and as such is no longer an issue in dispute. In the alternative, if it has not already been approved, given the applicant’s failure to address the respondent’s claims of redundancy, I find that the applicant has failed to meet her onus to prove the reasonableness and necessity of the psychological assessment.
Interest
45The applicant is entitled to interest in accordance with s. 51 of the Schedule, for the OCF-18 for the oculo-visual assessment, the OCF-18 dated October 31, 2018 for chiropractic treatment and the portion of the OCF-6 dated January 7, 2019 for cannabis oil and medical marijuana.
Award
46The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
47The applicant argues that the respondent failed to conduct a proper investigation into her claim for medical benefits and failed to seek advice from a supervisor regarding such entitlement. Although I have found that the applicant was entitled to some of the outstanding medical benefits claimed, I note that insurers are not held to a standard of perfection. I find that the applicant has not established that the respondent’s conduct rises to the threshold of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate, and as such, no award is payable.
ORDER
48For the reasons outlined above, I find that:
i. The applicant is entitled to the OCF-18 dated January 9, 2019, for a functional oculo-visual assessment, plus interest in accordance with s. 51 of the Schedule;
ii. The applicant is entitled to the OCF-18 dated October 31, 2018, for chiropractic treatment in the amount of $1,977.05, plus interest in accordance with s. 51 of the Schedule;
iii. The applicant is entitled to a portion of the OCF-6 dated January 7, 2019 for cannabis oil and medical marijuana, plus interest in accordance with s. 51 of the Schedule. The applicant is not entitled to remaining portion of the OCF-6;
iv. The applicant is not entitled to the remaining treatment plans in dispute;
v. The applicant is not entitled to an award.
Released: June 19, 2023
Ulana Pahuta
Adjudicator