Licence Appeal Tribunal File Number: 24-000766/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:
[CW]
(a minor by their litigation guardian, [SO])
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Gary Harvey
APPEARANCES:
For the Applicant:
Karen Vigmond, Counsel
For the Respondent:
Jagdeep Khela, Counsel
HEARD:
By way of written submissions
OVERVIEW
1[CW] the minor applicant, was involved in an automobile accident on August 30, 2010, 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, TD General Insurance Company, and through his litigation guardian applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $5,300.00 for optometric services, proposed by Dr. Yan Ying Liang, Warden Optometry in a treatment plan/OCF-18 (“plan”) submitted January 7, 2022?
ii. Is the applicant entitled to $3,958.67 for other assistive devices, proposed by Paula Hilborn of PIOT in a plan submitted January 18, 2022?
iii. Is the applicant entitled to $8,518.70 for audiometric, speech language therapy services, proposed by Kavita Schaffer of Functionability in a plan submitted March 7, 2023?
iv. Is the applicant entitled to $2,278.66 for other goods and services, proposed by Lisa Martin of PIOT in a plan submitted July 11, 2023?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is entitled to $5,300.00 for optometric services.
ii. The applicant is entitled to $812.76 for assistive devices: a curved computer monitor, wobble stool, preparation service and documentation support costs.
iii. The applicant is entitled to $8,518.70 for audiometric, speech language services.
iv. The applicant is not entitled to $2,278.66 for a YMCA summer camp and a YMCA family membership.
v. The applicant is entitled to interest in accordance with s. 51 of the Schedule for the optometric services, assistive devices: curved computer monitor, wobble stool, preparation services, documentation completion and audiometric, speech language services.
PROCEDURAL ISSUES
4In his reply submissions, the applicant requested that the respondent’s surveillance evidence be excluded as evidence at this written hearing. The respondent’s submissions include reference to surveillance that was conducted on the applicant with respect to at least one of the issues in dispute. The applicant submitted that the surveillance evidence is irrelevant and was never disclosed to them ahead of the hearing. They further submitted that the surveillance was conducted years after the treatment plans in dispute were submitted and therefore is not reflective of the applicant’s condition back in 2022 and 2023. Nor was the surveillance provided to the three doctors conducting the assessments for the respondent. In the Order section 11 states that no later than 60 calendar days from the case conference, both parties shall exchange all other documents and things not previously exchanged that they intend to rely on as evidence at the hearing. I find that the respondent did not comply with the Order, and I have excluded the surveillance evidence that was submitted.
ANALYSIS
The applicant is entitled to optometric services
5I find that on a balance of probabilities the proposed treatment plan is reasonable and necessary, and the applicant is entitled to $5,300.00 for optometric services.
6To receive payments for an OCF-18 under sections 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 the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
7The applicant submits that in 2021 he complained of headaches, poor focus in school, poor spelling, and difficulty copying from the board at school. The applicant underwent a binocular vision assessment with neuro-developmental optometrist, Dr. Yan Ling Liang on December 17, 2021. The goals of the treatment plan include rehabilitating the applicant to normal near point of convergence, normal accommodation ranges and flexibility, normal vergence ranges and flexibility, King Devick reading speed to his age level, Groffman Tracing near sustainability to his age level, 70% in all visual perception results including visual figure ground, visual orientation, and visual closure, reduced to 2/1 for balance symptoms along with reduced frontal, cerebellum and temporal effect. The treatment plan recommends Syntonics light therapy (photobiomodulation) which would help open his usable fields for far more peripheral for sports, reading and reduce the chance of tunnel vision. Optometric vision therapy would help improve his accommodation and vergence in magnitude and range for flexibility in focusing and better eye teaming. 20-30 sessions are recommended with a progress check after 10 and 20 sessions of the vision therapy.
8The applicant submits that he was involved in a motor vehicle accident on August 30, 2010, when he was an infant being pushed in a stroller when he was struck by a dump truck as they were crossing the street. At the time of the accident no obvious injuries were reported however the applicant submits that he developed behavioural issues shortly thereafter and was diagnosed with Post Traumatic Stress Disorder in November 2010. In 2018, Neuropsychologist, Dr. Robyn Westmacott concluded that it was more likely than not that the applicant suffered a mild traumatic brain injury as a result of the collision and this has materially contributed to his ongoing psychological and cognitive symptomatology which includes attention, impulsivity, hyperactivity, vernal working memory, memory monitoring, and consistency of performance during speeded tasks.
9On January 7, 2022, Dr. Liang recommended optometric vision therapy after completing a binocular vision assessment. The applicant was then requested to attend insurer examinations (“IE”) with Ophthalmologist Dr. Robert Adam and two paper reviews were conducted by Neuropsychologist Dr. Lina Soloman and Neurologist Dr, Garry Moddel. On February 15, 2023, the respondent advised the applicant that it was maintaining its denial based on the opinions of the IE assessors. Dr. Soloman however was unable to provide an opinion as the plan was outside of her scope of practice.
10The respondent relies on s. 44 assessment reports of Dr. Adam dated February 9, 2023, along with Dr. Moddel and Dr. Soloman’s paper reviews both dated February 9, 2023. Dr. Adam found the applicant’s ocular examination was within normal range. Dr. Soloman was not able to provide an opinion due to her scope of practice and Dr. Moddel found no evidence of any neurological impairment.
11While I have considered the differing professional medical opinions regarding this treatment plan, I find that the proposed treatment plan is reasonable and necessary taking into consideration that the visual motor deficits found when assessing the applicant on a balance of probabilities are accident related as submitted in Dr. Liang’s report dated January 7, 2022. The treatment plan also contains appropriate check points along the way that are proposed after 10 and 20 sessions to evaluate the effectiveness of the proposed treatment. Given the age of the applicant at the time of the accident I agree with the submissions of the applicant and Dr. Liang’s medical reports that it is difficult to fully assess an infant child which the applicant was when the accident occurred. I found that the report of Dr. Adam and Dr. Moddel did not directly address the specifics of the proposed treatment plan. The assessments conducted by each doctor were robust considering the applicant’s accident-related visual impairments and needs although I do find that the assessment of Dr. Liang is more convincing in comparison to that of Dr. Adam who also did not address all of the components of Dr. Liang’s assessment. During Dr. Adam’s assessment the applicant complaints differed from those as described to Dr. Liang in her assessment which may account for the differences. To put this into context Dr. Liang notes that the applicant currently complains of headaches, poor focus at school, poor spelling, and difficulty copying from the board. When attending Dr. Adam’s assessment, the applicant only indicated that sometime his eyes get itchy but there is nothing wrong with my eyes. However, the applicants mother reported that her son has difficulty concentrating and is concerned if it related to his vision. These two assessments are eight months a part and I take into account that the applicant was 12 years old at the time of the assessment with Dr. Adam. As a result, I placed more weight on Dr. Liang’s assessment.
12I find on a balance of probabilities that the applicant has met their burden to establish that the treatment plan for optometric services in the amount of $5,300.00 is reasonable and necessary with the maximum hourly rate payable as prescribed by the Financial Services of Ontario - Professional Services Guideline.
The applicant is entitled to $440.02, $72.99, $99.75 and $200.00 for a curved computer monitor, a wobble stool, preparation services and documentation completion, respectively, plus applicable sales taxes
13I find that on a balance of probabilities the proposed plan dated January 28, 2022, for assistive devices is partially reasonable and necessary and the applicant is entitled to $440.02 for a curved computer monitor, $72.99 for a wobble stool, $99.75 for preparation service and $200.00 for documentation completion along with applicable taxes.
14The applicant submits that on January 18, 2022, Occupational Therapist, Paula Hilborn recommended a desktop computer along with a stool. Ms. Hilborn documents in her OCF-18 that the applicant requires the assistive devices because “the applicant continues to have vision challenges which are under investigation by the optometrist with the feedback being that his eyes are not working well together. The laptop the applicant is using now is a small monitor and results in eye strain by the end of the school day. A curved monitor has been shown to minimize eye strain as it has a wider field of view, and it has less distortion. The hard drive, monitor, keyboard and mouse are labelled as gaming devices as the applicant is involved in computer coding specifically for games. He requires a computer that has a fast-processing speed for this coding. The wobble stool will allow the applicant to be able to move a little while sitting at his desk which will allow him to focus his attention on the schoolwork as he needs to be able to move to self regulate. In addition, the wobble stool will improve his core strength which was identified as an issue in the Occupation Therapy Initial Assessment Report.”
15The respondent relies on the s. 44 assessment reports of Dr. Adam dated February 9, 2023, and the IEs from Dr. Moddel and Dr. Soloman both dated February 9, 2023. The respondent submits that they denied the treatment plan based on the opinions of the assessors as they all found the treatment plan was not reasonable or necessary. Dr. Adam found no evidence of a visual impairment as the applicant’s ocular examination was within the normal range. Dr. Soloman was unable to provide an opinion due to the scope of her practise and Dr. Moddel found no evidence of any neurological impairment.
16I find that the proposed treatment plan is partially reasonable and necessary taking into consideration the entire context of the outlined medical issues and the reasonableness for the requested assistive devices. In his paper review dated August 9, 2022, Dr. Modell felt that the applicant’s neurological examination was unmarkable with no neurological abnormalities. It is documented in the OCF-18 by the Occupational Therapist, Paula Hilborn that the applicant continues to suffer from some vision challenges and how some of the assistive devices requested would assist the applicant. I find that the curved screen and the wobble stool are reasonable and necessary for the reasons as outlined in the OCF-18. For example, Ms. Hilborn reports that the wobble stool will allow the applicant to be able to move a little while sitting at his desk which will allow him to focus his attention on the schoolwork as he needs to move to self regulate sensory seeking behaviours. It will also help improve his core strength which was identified as an issue in the Occupational Therapy Assessment Report. She also notes that a curved monitor has been shown to minimize eye strain and it has a wider field of view and less distortion.
17However, I do not find the request for a gaming computer, gaming keyboard and gaming mouse are reasonable nor necessary. In the submissions it indicates that the gaming computer and accessories are required for coding that the applicant does and also states the requirement for the curved screen is because the laptop the applicant uses has a small screen that results in eye strain by the end of the school day. A desktop gaming computer would not be used in the same manner as a laptop would be for schoolwork during the school day. In the respondent’s submissions it submitted that the faster gaming desktop computer in question was required by the applicant as he does coding with the computer opposed to it being used for school work as he currently uses his laptop. A desktop computer is also not portable to be brought to school as a laptop would. As a result, I do not find that the desktop gaming computer, with keyboard and mouse is reasonable and necessary.
18I find on a balance of probabilities that the applicant has met their burden to establish that some of the assistive devices named in the treatment plan are reasonable and necessary. I find that the curved screen and the wobble stool are reasonable and necessary, and that the applicant is entitled to $440.02 for the Dell 27 curved gaming monitor, $72.00 for a wobble stool from Amazon, $99.75 for preparation service and $200.00 for documentation support along with any applicable sales tax.
The applicant is entitled to $8,518.70 for audiometric, speech language services
19I find on a balance of probabilities the proposed treatment plan is reasonable and necessary and the applicant is entitled to $8,518.70 for audiometric, speech language services.
20The applicant submits that he has been attending speech language therapy since 2013 that had been approved by the respondent. On March 3, 2023, speech language pathologist Kavita Schaffer, who has been treating the applicant since 2020 provided a progress report that included the recommendation for continued therapy sessions for the applicant’s ongoing deficits. Ms. Schaffer noted that the applicant had been performing well below the median for 11/14 areas of grading in school. She outlined difficulties he had been having, specifically with verbal and written expression, social communication, auditory comprehension, attention, reading comprehension, and executive functioning. On April 6, 2023, the respondent denied the treatment plan and advised it was being sent to an insurer’s examination. The applicant argues that on October 30, 2023, the respondent advised it would be maintaining the denial based on the opinions of Dr. Moddel and Dr. Soloman. Dr. Moddel found the treatment plan not to be reasonable or necessary based on his prior August 2021 assessment some two years earlier. Dr. Soloman’s main reason for denial was that no communication or linguistic difficulties had been identified in any neuropsychological assessment.
21The applicant argues that on February 1, 2024, Ms. Schaffer provided an addendum report, which addressed concerns raised by Dr. Soloman and that Dr. Soloman did not provide a response to this report.
22The respondent relies on s. 44 IE paper reviews by Dr. Moddel and Dr. Soloman and maintained its denial based on their opinions. Dr. Soloman denied the treatment plan based on her observations that the applicant did not suffer from any communication linguistic difficulties during her neuropsychological assessments. Dr. Moddel denied the treatment plan as he did not believe the applicant had a neurological impairment.
23I find that the progress report requesting additional speech language sessions completed by speech language pathologist Kavita Schaffer to be persuasive. It is also the most up to date assessment of the applicant with respect to his linguistic progress. Both insurance examinations that the respondent is relying on were paper reviews relying on earlier reports for determination. Ms. Schaffer’s report is detailed, speaks to the short term and long-term goals of the treatment plan, clearly outlining the applicant’s written expression, social communication and verbal expression, reading comprehension, auditory comprehension, executive functions and attention. Ms. Schaffer also clearly outlines the difficulties that the applicant has.
24I find on a balance of probabilities that the applicant has met their burden to establish that the audiometric, speech language services in the amount of $8.518.70 is reasonable and necessary. The amount payable by the insurer for each of the 16 sessions shall be no more than as prescribed by the Financial Services of Ontario - Professional Services Guideline.
The applicant Is not entitled to other goods and services: Summer YMCA Camp and a YMCA family membership
25I find the applicant has not met his onus to demonstrate he is entitled to the disputed amount for other goods and services: Summer YMCA Camp and a YMCA family membership.
26The applicant submits that Occupational Therapist Lisa Martin recommends the applicant attend an outdoor YMCA camp along with a family membership to the YMCA. Ms. Martin states in her OCF-18, dated July 11, 2023, that the applicant continues to have difficulty socializing with peers and participation in a summer camp would improve this and help him develop leadership skills and boost his self-esteem. Funding for a family YMCA membership is also recommended to permit the applicant to work on his physical abilities while being supervised and encouraged by his family.
27The applicant argues that these benefits were previously approved by the insurer prior to the Covid-19 pandemic.
28The respondent submits that they denied the treatment plan and sent it for a s.44 IE to assessors Dr. Soloman and Dr. Moddel for review. Dr. Soloman states in her assessment that during the two assessments she performed, both the applicant and his mother stated that he has plenty of friends in school and likes going to school. The applicant also reported being involved in extracurricular activities and that he plays in an orchestra making friends there also. The applicant also indicated to Dr. Soloman that he goes out with friends and that he independently rides his bike to perform errands such as attending a local store for daily food items. Dr. Moddel opined that the applicant did not suffer from a neurological impairment. Both assessors deemed the plan not reasonable and necessary.
29Although these benefits were previously approved by the insurer prior to the Covid-19 pandemic it does not necessarily follow that the benefit would automatically be continued several years later. The condition of the applicant and the reasonableness of the plan can change over time, and I note that the onus rests with the applicant to establish that a benefit is reasonable and necessary. I find the IE of Dr. Soloman persuasive as it specifically details her assessment of the applicant’s social functioning in multiple settings where it is evident that the applicant is socializing as would be expected for a person of his age.
30I find that the applicant has not met his onus to demonstrate entitlement to the amount in dispute with respect to the summer YMCA camp and the YMCA family membership.
Interest
31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on the overdue benefits for the optometric services, assistive devices: curved computer monitor, wobble stool, preparation services, documentation completion and audiometric, speech language services.
ORDER
32For the reasons outlined above, I find that:
i. The applicant is entitled to $5,300.00 for optometric services, plus interest in accordance with s. 51 of the Schedule.
ii. The applicant is entitled to $812.76 plus applicable sales taxes for assistive devices: a curved computer monitor, wobble stool, preparation service and documentation support, plus interest in accordance with s. 51 of the Schedule. The applicant is not entitled to the remaining balance of the treatment plan dated January 18, 2022.
iii. The applicant is entitled to $8,518.70 for audiometric, speech language services, plus interest in accordance with s. 51 of the Schedule.
iv. The applicant is not entitled to $2,278.66 for a YMCA summer camp and a YMCA family membership.
Released: December 23, 2025
__________________________
Gary Harvey
Adjudicator