Licence Appeal Tribunal File Number: 23-015175/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:
Barbara Ann Morris
Applicant
And
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Jim Davidson, Counsel
For the Respondent:
Thomas Mckinlay, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Barbara Morris, the applicant, was involved in an automobile accident on February 12, 2019, 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, The Personal Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to $4,945.00 for vision therapy, proposed by London Vision Development Centre (“London Vision”) in a treatment plan (“OCF-18”) dated May 15, 2023?
Is the applicant entitled to the OCF-18s proposed by Injury Management Services as follows:
i. $3,073.13 for occupational therapy services dated July 8, 2023; and
ii. ii. $1,940.22 for a therapeutic mattress dated February 2, 2024?
Is the applicant entitled to $2,199.00 for a psychological assessment, proposed by Grace & Harnadek Neuropsychology in an OCF-18 dated January 3, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award pursuant to s. 10 of Reg. 664?
RESULT
3The applicant is not entitled to any of the OCF-18s in dispute, interest or an award.
PROCEDURAL ISSUE
4The applicant’s submissions did not comply with paragraph [20] of the Tribunal’s case conference report which stated that “submissions must make specific reference to the evidence and authorities by tab and page number.” In her submissions, the applicant referred to the first 150 pages of evidence in her brief and explained the relevance to the issues in dispute. However, she then referred to a Schedule A which included over 1350 pages of medical records and did not explain the relevance of this evidence to the issues in dispute or provide tabs, or page numbers within the brief. It is well established law that it is not appropriate for the trier of fact to go through over a thousand pages of medical records to make a parties’ case. Consequently, I have given no weight to evidence where the applicant did not explain its relevance.
ANALYSIS
5Section 14 and 15 of the Schedule provides that an insurer is only liable to pay for medical 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 claimed medical expenses are reasonable and necessary. 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 Tribunal has also determined that treatment is reasonable and necessary if it results in the temporary relief of pain.
The applicant is not entitled to the OCF-18 for vision therapy in the amount of $4,945.00.
6The OCF-18 dated May 15, 2023, was authored by Dr. Khamis (London Vision), optometrist and recommended 16 sessions of vision therapy at a cost of $2,720.00; $425.00 for an eye assessment; $1,600.00 for updated glasses and $200.00 for form preparation for a total cost of $4,945.00. The goal of the OCF-18 was pain reduction, and reduction of vision related post-concussive symptoms as per Dr. Khamis’ report.
7The applicant argues that the OCF-18 for vision therapy is reasonable and necessary because she sustained a mild traumatic brain injury (“TBI”) as a result of the accident which has resulted in post-concussion syndrome and associated problems with vision. She submits that her vision impairment is supported by the medical record and remains unresolved. Further, she has had to wear eyeglasses with prism tint for driving and has had ongoing issues with balance. She relies on the report of Dr. Agrawal dated July 11, 2023, who recommended the assessment with London Vision because the applicant’s testing could not be completed due to peripheral vision in her right eye. The applicant relies on the Tribunal’s decision in White v. Travelers Insurance, 2021, CanLII 2052 (ONLAT) (“White”) where the adjudicator determined that vision therapy was reasonable and necessary. The adjudicator also preferred the evidence of Dr. Khamis over Dr. Ranalli.
8The respondent submits that the OCF-18 for vision therapy is not reasonable and necessary because it has previously approved 48 sessions of the same treatment which did not result in any significant improvement to the applicant’s vision complaints. It also asserts that the reports of Dr. Fraser, the treating neuro-ophthalmologist the applicant saw at the hospital shortly following the accident support that the applicant’s right eye examination was normal and that her symptoms were likely related to post-concussive pathology versus a vision impairment. Dr. Fraser recommended that the applicant follow up with an occupational therapist and physiotherapist for treatment. The respondent also relies on the s. 44 insurer examination (“IE”) of Dr. Ranalli, neurologist who concluded that the OCF-18 for vision therapy was not reasonable and necessary. The respondent submits that the scenario in the Tribunal’s decision in Okafor-Ogbujiagba v. TD General Insurance Company, 2024, CanLII 126879 (ONLAT) (“Okafor-Ogbujiagba”) is more applicable to the facts in this case because the adjudicator determined that vision therapy treatment was not reasonable and necessary because there was insufficient evidence that past treatment resulted in any benefit.
9I find the applicant has not proven that the OCF-18 for vision therapy is reasonable and necessary for the following reasons.
10First, I find that the reports of Dr. Fraser support that the applicant’s issues with vision were because of post-concussive syndrome versus an eye impairment because the doctor’s physical examination of the applicant’s right eye was normal. This doctor recommended that she follow up with an occupational therapist and physiotherapist for treatment.
11Second, the applicant did not address in her submissions that she had already received several sessions of vision therapy treatment or refer me to the evidence in support of her position that the past treatment has resulted in a reduction of pain or improvement to post-concussive vision symptoms. I also find the scenario in the White decision relied on by the applicant distinguishable from this matter because in that case there was evidence that past treatment resulted in improvement. In addition, the applicant did not direct me to the report of Dr. Khamis which will be discussed further below.
12Third, the applicant did not address in her submissions that part of the OCF-18 in dispute was for updated glasses. Based on her submissions it is unclear to me whether the updated glasses were for the prism tinted glasses she already has or for a new pair or why the updated glasses were needed.
13Fourth, the OCF-18 indicates that the recommendations were based on the report of Dr. Khamis. However, the applicant did not refer to this report in her submissions or list it in her document brief, so I have no information about what type of vision therapy treatment was recommended, benefits from past treatment or any information related to the updated glasses. As highlighted above, it would be inappropriate for me to search through over a thousand pages of records in the applicant’s brief to determine whether it is included in the record.
14In contrast, the respondent relies on the IE report of Dr. Ranalli, which noted that the applicant reported receiving no improvement from past vision therapy. The report stated that she still experiences black spots in the right eye, diminished right visual awareness and unchanging photo sensitivity. Dr. Ranalli’s neuro ophthalmological examination was also normal, and the doctor concluded that the type of therapy being offered by this branch of optometry has not shown validated efficacy in this clinical setting. Based on the evidence before me, I accept Dr. Ranalli’s opinion.
15Although I acknowledge that the applicant sustained a TBI as a result of the accident which has resulted in issues with vision in her right eye, she has not met her onus in proving on a balance of probabilities that the vision therapy or updated glasses proposed in the disputed OCF-18 is reasonable and necessary.
The applicant is not entitled to the OCF-18 for occupational therapy in the amount of $3,073.13.
16The OCF-18 dated July 8, 2023, was authored by Nancy Robinson, occupational therapist (“OT Robinson”) who recommended six sessions of occupational therapy, six sessions of planning, form preparation, and fees for documentation and report writing and a Paddle Canada Basic Course for a total cost of $3,073.13. The goal of the OCF-18 is to maximize recovery of pre-accident functioning and restore pre-accident active leisure pursuits.
17The applicant argues that the OCF-18 is reasonable and necessary because she suffers from chronic pain and various post-concussive symptoms which have interfered with her ability to carry out her pre-accident leisure activities such as kayaking and riding a motorcycle. She relies on the report of Dr. van Reekum, neuropsychiatrist dated February 5, 2023, who recommended that the applicant receive ongoing rehabilitation and treatment.
18The respondent asserts that the OCF-18 for occupational therapy is not reasonable and necessary. It relies on the IE report of Deepali Dhawan, occupational therapist (“OT Dhawan”) dated October 20, 2023, who determined that the applicant demonstrated the functional and cognitive abilities to perform pre-accident normal activities of daily living. The therapist also opined that kayaking is unsafe for someone with the applicant’s post-concussion symptoms because it can cause dizziness, nausea and motion sickness. Further, the OCF-18 is inconsistent with someone with the applicant’s vision and vestibular issues.
19I find the applicant is not entitled to the OCF-18 for occupational therapy for the following reasons.
20First, I find OT Robinson’s recommendation that the applicant receive occupational therapy to restore leisure pursuits such as kayaking inconsistent with the therapist’s progress report #2, dated February 1, 2023, which indicated that the applicant “was able to kayak this season” despite the extent of her impairments with dizziness, balance and vision. Consequently, I find the goal of the OCF-18 redundant because she reported that she had returned to this activity prior to the submission of the OCF-18 despite her post-concussion symptoms.
21Second, I find Dr. van Reekum’s report unhelpful because it is difficult to distinguish between summaries of the various medical reports and the applicant’s self reports on which the doctor based their opinion. Further, the report was hard to decipher because it consisted of 46 pages of lengthy paragraphs containing bullet point information without sufficient space, punctuation or explanation. Moreover, Dr. van Reekum recommended that the applicant receive periodic involvement of a rehabilitation case manager and a physiatrist not occupational therapy to return her to her post-accident leisure activity of kayaking.
22Third, I prefer the opinion of OT Dhawan because the therapist concluded that the applicant had the functional and cognitive abilities to perform her pre-accident activities of daily living. I also find OT Dhawan’s opinion that kayaking would be unsafe for someone with the applicant’s reported post-concussive symptoms such as dizziness, balance and problems with vision reasonable based on the facts in this case.
23For the above-noted reasons, I find that the applicant has not proven on a balance of probabilities that the OCF-18 for occupational therapy is reasonable and necessary.
The applicant is not entitled to the OCF-18 for a therapeutic mattress in the amount of $1,940.22.
24The OCF-18 dated February 2, 2024, was also authored by OT Robinson and recommended a replacement mattress at a cost of $1,740.22, plus $200 for form completion for a total cost of $1,940.22. The goal of the OCF-18 is pain reduction. The applicant submits that OCF-18 is reasonable and necessary because she has persistent issues with obtaining restorative sleep post-accident due to her accident-related impairments.
25The respondent argues that the OCF-18 for a therapeutic mattress is not payable because the applicant purchased the mattress on November 2, 2023, which was four months prior to submitting the OCF-18. It maintains that s. 38 (2) of the Schedule supports that an insurer is not liable to pay an expense prior to the submission of an OCF-18. I agree for the following reasons.
26The applicant did not file reply submissions addressing the respondent’s argument that she is not entitled to the OCF-18 because it was incurred prior to submitting it to the respondent. I note that s. 38(2) provides some exceptions to the rule, such as emergency expenses such as ambulance fees or prescription medication. In addition, an insurer may also agree to pay for an expense prior to the submission of an OCF-18 in some circumstances. I note that none of these exceptions apply to the OCF-18 in dispute. Therefore, I conclude that the applicant is not entitled to payment of same because she incurred the expense prior to submitting the OCF-18 to the respondent.
The applicant is not entitled to the OCF-18 for a psychological assessment in the amount of $2,199.00
27Section 25(1) of the Schedule provides that an insurer shall pay for reasonable fees to complete an assessment. Section 25(5)(a) limits the cost of any one assessment or examination to $2,000.00. The applicant bears the onus of proving on a balance of probabilities that the assessment is reasonable and necessary. The jurisprudence also supports that to prove that an assessment is reasonable and necessary the applicant must have evidence that he has an accident-related impairment which the assessment is meant to address.
28Dr. Grace, psychologist, authored two OCF-18s, one which recommended a cognitive assessment (including testing) in the amount of $2,199.00. The second OCF-18 recommended a psychological assessment (including testing) in the amount of $2,219.74. Under additional comments, the doctor stated that both the OCF-18 for neurocognitive testing and psychological assessment are required to complete a full comprehensive neuropsychological assessment to recommend treatment. The respondent denied the OCF-18 on the basis that the second assessment was a duplication of services.
29The applicant submits that the second OCF-18 recommending a psychological assessment is not a duplication of services because the prior assessment was proposed for a cognitive assessment and testing to address her cognitive impairments. She maintains that a psychological assessment along with testing is required to determine the extent of her psychological impairments. Moreover, she submits that the medical evidence supports that she sustained both cognitive and psychological impairments as a result of the accident. Consequently, the two-part assessment is reasonable and necessary to assess these impairments and recommend treatment. The applicant relies on the Tribunal’s decision in Buckley v. Certas Direct, 2023 CanLII 26953 (ON LAT) (“Buckley”) in support of her position that the psychological assessment is reasonable and necessary. In that decision, the adjudicator determined that both a cognitive and psychological assessments were reasonable and necessary for a comprehensive neuropsychological assessment to be completed.
30The respondent argues that the OCF-18 recommending a psychological assessment was properly denied as being duplicative. It asserts that the $2,000 funding cap per assessment as per s. 25(a) applies because it approved $2,000 for the neuro-psychological assessment on January 13, 2022. In addition, the disputed OCF-18 provided general statements regarding why two assessments were required. Finally, it submits that despite its denial of the second OCF-18, Dr. Harnadek conducted a comprehensive neuropsychological assessment and completed a report dated May 23, 2022. Despite the partial denial, the doctor still conducted both cognitive and psychological testing, rendered diagnoses and made recommendations for treatment. It maintains that Dr. Harnadek’s report makes no mention that the report was incomplete because the necessary testing was unable to completed. The respondent relies on the Tribunal’s decision in Norris v. Aviva Insurance Company of Canada, 2024, CanLII 88889 (ON LAT) where the adjudicator determined that two assessments were not reasonable and necessary to conduct a neuropsychological assessment.
31In this case, I find the applicant has not proven that the second OCF-18 for a psychological assessment is reasonable and necessary. I find Dr. Harnadek’s report supports that the doctor completed a full neuropsychological assessment even though the respondent denied the second OCF-18 for a psychological assessment. The doctor completed both cognitive and psychological testing, rendered diagnoses and made recommendations for treatment. Further, the doctor’s report did not indicate that there were any limitations in their report, opinion or diagnoses because of the respondent’s denial of the psychological assessment. For these reasons, I find the applicant has not proven that the second OCF-18 for a psychological assessment is reasonable and necessary.
The applicant is not entitled to interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because I have not determined that any benefits were overdue.
The applicant is not entitled to an award
33Although not included as an issue in dispute, the applicant sought an award under s. 10 of Reg. 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. Despite not being properly added as an issue in dispute the applicant’s submissions addressed a claim for an award. In general, the applicant made broad allegations that the respondent wrongfully denied access to medical benefits and did not refer to the specific conduct. Considering my decision in this matter, I find that an award is not payable because I have not determined that the benefits in dispute were unreasonably withheld, and that the applicant has not established entitlement to the benefits.
ORDER
34For the above-noted reasons, I find the applicant is not entitled to any of the OCF-18s in dispute, interest or an award.
Released: October 7, 2025
Rebecca Hines
Adjudicator