Licence Appeal Tribunal File Number: 23-005606/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:
Linda Smith
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Jacob Aitcheson, Counsel
For the Respondent: Marco Fantin, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Linda Smith, the applicant, was involved in an automobile accident on February 7, 2021, 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, Wawanesa Mutual 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:
i. Is the applicant entitled to $825.00 for an optometric assessment, proposed by Dr. Riyad Khamis, optometrist in a treatment plan/OCF-18 (“plan”) submitted May 5, 2021?
ii. Is the applicant entitled to $7,029.20 for occupational therapy services, proposed by Rose Carey, occupational therapist (“OT”) in a plan submitted August 27, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is not entitled to the disputed treatment plans as the applicant has not proven on a balance of probabilities that they are reasonable and necessary for her accident-related injuries. The applicant is also not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.
ANALYSIS
4To receive payment for a treatment 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. 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 same are reasonable.
The applicant is not entitled to the proposed neuro-optometric assessment
5I find that the applicant has not demonstrated that the plan in dispute for a neuro-optometric assessment is reasonable and necessary as a result of her accident-related impairments.
6The plan dated May 3, 2021, for a neuro-optometric assessment was completed by Dr. Riyad Khamis, optometrist of London Vision Development Centre, in the amount of $825.00. Dr. Khamis indicates that the neuro-optometric evaluation includes two components, a binocular vision evaluation and a visual information processing evaluation. The goals of the plan are to assess the applicant’s condition regarding her visual memory, cognition, tracking, and tasks involving high-lit environments or screen work.
7The applicant submits that her accident-related injuries include post-concussion syndrome, with chronic headaches, blurred vision, dizziness, poor balance, light and noise sensitivity and cognitive difficulties. The applicant further submits she sustained injuries to her neck, back, and shoulder, as well as low mood, sleep disruption and fatigue. The applicant also argues that her concussion related vision issues have not improved.
8The applicant relies on the clinical notes and records (“CNRs”) of Dr. Geming Tu, general practitioner, and Dr. Deborah Delany, optometrist of Highbury Huron Optometry. The applicant submits that she requires the use of progressive addition lenses (“PAL”) with tint for her concussion related light sensitivity. Dr. Tu relied on the applicant’s self reports of her symptoms by teleconference, which included blurred vision and foggy vision. The applicant was examined by Dr. Delany on two occasions after the accident. On April 30, 2021, Dr. Delany performed a routine ocular health assessment and she found no diabetic retinopathy. Dr. Delany did not note blurred or foggy vision and she did not prescribe any vision correction. Then two years later, Dr. Delany provided a routine diabetic eye examination on March 17, 2023. On March 17, 2023, Dr. Delany indicates that the applicant has ongoing problems following the 2021 concussion. However, Dr. Delany does not mention any diagnosable vision problems other than the use of tinted glasses.
9The respondent argues that the applicant has no accident-related vision impairments. The respondent points to the Insurer’s Examination (“IE”) reports dated November 24, 2021, by Dr. Larry Allen, ophthalmologist which indicates that an examination of the applicant’s eyes reveal no accident-related ophthalmic impairment or light sensitivity. Dr. Allen indicates that the applicant reported no light sensitivity, double vision, or symptoms of monocular diplopia. Dr. Allen diagnosed the applicant with an unrelated astigmatism, which is a curvature of the eye which causes blurred vision at near vision. In a subsequent paper review report dated May 12, 2022, Dr. Allen concluded that the applicant does not require any ophthalmologic treatment.
10The respondent also relies on s.44 IE report dated November 24, 2021, by Dr. Rehan Dost, neurologist, in which Dr. Dost concludes that the applicant’s symptoms of monocular diplopia are not neurological. Dr. Dost accounts for the applicant’s cognitive symptoms as related to psychiatric factors since there is no evidence of brain damage. The respondent further relies on IE reports dated December 20, 2021, by Dr. Christopher Abeare, neuropsychologist and Dr. Pankaj Bansal, general practitioner.
11I find that the applicant has provided contradictory information to assessors. In an IE report dated December 20, 2021, Dr. Bansal notes that the applicant reported blurred vision and an inability to read. In an IE report dated December 20, 2021, by Dr. Abeare, although the applicant reported blurred vision and inability to read, she demonstrated good reading vision during the assessment on December 6, 2021. Further, I find that both Dr. Allen and Dr. Delany performed vision testing of the applicant after the accident, neither of whom mention the applicant’s symptoms of blurred vision, double vision, or an inability to read. Dr. Delany and Dr. Allen do not mention any accident-related problems with visual memory, cognition, tracking, and tasks involving high-lit environments or screen work.
12The applicant has not met her burden of establishing entitlement to the plan dated May 3, 2021. While the plan completed by Dr. Khamis recommends an assessment, I find that this is not corroborated by contemporaneous medical evidence.
The applicant is not entitled to occupational therapy services
13I find that the applicant has not demonstrated that the plan in dispute for occupational therapy services is reasonable and necessary as a result of her accident-related impairments.
14The plan dated August 27, 2021, for occupational therapy services and assistive devices was completed by Rose Carey, occupational therapist of St. Joseph’s Health Care, in the amount of $7,029.20. The goals of the plan are for pain reduction, sleep hygiene, education on concussion, cognitive remediation, pacing and planning, return to activities of daily living, improve mood, increase mobility, and home safety.
15The applicant relies on the OT screen report dated May 26, 2021, by Heather Pickin and an OT report dated August 23, 2021, by Rose Carey. The applicant submits that Rose Carey concluded in her report that the applicant has symptoms of impaired memory, attention and concentration difficulties, light sensitivity, vision changes and numerous physical limitations.
16The respondent points to the IE report dated December 20, 2021, by Dr. Bansal, and the report of Dr. Abeare. In his report, Dr. Bansal mentions that the applicant was followed by Dr. Daniel Mendonca, neurologist, before the accident for unrelated neuropathy and balance issues. He concludes that the applicant sustained soft tissue injuries to her neck, back and right arm in the accident which have resolved. Dr. Abeare opined that the applicant’s test results were unreliable. Dr. Abeare concluded that the applicant’s cognitive and emotional symptoms are a combination of pre-existing conditions, which include somatoform disorder, diabetes, peripheral neuropathy, and possible sleep apnea, none of which were caused by the accident. The respondent further submits that the applicant’s credibility is an issue given the findings of Dr. Abeare and the absence of any physical findings by Dr. Tu.
17I find the applicant has not met her burden of establishing entitlement to the plan for occupational therapy services dated August 27, 2021. I find that the medical evidence does not support the need for occupational therapy services as a result of the accident. The applicant’s problems with balance, cognitive difficulties and physical limitations appear to relate to pre-existing conditions rather than her accident-related soft tissue injuries. It is well established that a treatment plan alone is not sufficient to establish entitlement, and that there must be corroborating medical evidence in support. In this case, I find that the applicant relies on the treatment plan without corroborating medical evidence.
18I find on a balance of probabilities, that the applicant has not established that the treatment plan is reasonable and necessary.
Interest
19Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since, I have found the applicant is not entitled to the disputed treatment plans, no benefits are owing, and interest does not apply.
ORDER
20For the reasons set out above, I find that:
i. The applicant is not entitled to the treatment plans in dispute;
ii. Interest is not payable, and.
iii. The application is dismissed.
Released: February 26, 2025
Lisa Holland
Adjudicator