Citation: Kearns v. Cooperators General Insurance Co., 2025 ONLAT 23-002829/AABS

Licence Appeal Tribunal File Number: 23-002829/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:

Donna Kearns

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR: Henry Harris

APPEARANCES:

For the Applicant: Colleen Burn, Counsel

For the Respondent: Jason H. Goodman, Counsel

HEARD: By way of written submissions

OVERVIEW

1Donna Kearns, the applicant, was involved in an automobile accident on February 1, 2017, 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, Co-operators General 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 $915.00 for a neuro-optometric assessment, proposed by Dr. J. Wareham in a treatment plan/OCF-18 (“plan”) dated December 12, 2022?

ii. Is the applicant entitled to $2,850.00 for prolotherapy, proposed by Dr. E. Ouellette in a plan dated August 23, 2022?

iii. Is the applicant entitled to $2,279.68 ($4,940.28 less $2,660.56 approved) for psychological services and assessment, proposed by JVS Assessment in a plan dated August 21, 2023?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

3For issue (i) above, the case conference report and order dated November 8, 2023 (the “CCRO”) refers to the plan being dated December 19, 2022. However, the correct date of the plan is December 12, 2022.

4For issue (ii) above, the CCRO and the parties’ initial submissions refer to plan being for a prolotherapy assessment. However, the applicant’s reply submission has clarified that that prolotherapy is a treatment and not an assessment.

RESULT

5The applicant is not entitled to the plan for a neuro-optometric assessment or to the remaining balance for the plan for psychological services and assessment.

6The applicant is entitled to the plan for prolotherapy plus interest.

ANALYSIS

Issue 1: Neuro-optometric assessment

7I find that the applicant has not proven on a balance of probabilities that the plan for a neuro-optical assessment is reasonable and necessary.

8To receive payment for a plan 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 treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

9The purpose of an assessment is to determine whether a condition exists. For an insured, that means that they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

10The December 12, 2022 plan proposing the neuro-optometric assessment was prepared by Dr. Jonathan Wareham, optometrist, and seeks funding of $915.00, comprised of $715.00 for the assessment and $200.00 for documentation and support activity. The plan does not set out any treatment goals at Part 9. The Additional Comments section of the plan notes the applicant suffered a concussion and she is experiencing, headaches, balance problems, fatigue, light sensitivity, as well as feeling disoriented and clumsy.

11The applicant submits the neuro-optometric assessment is reasonable and necessary. In support of her position, the applicant submits that proceeding with the assessment is based on the recommendation of Dr. Duncan McIlraith, neurologist, in a neurology consultation reporting letter dated September 16, 2019 recommending a visual assessment to address vision dysfunction.

12The applicant also relies on a report dated December 1, 2022 of Dr. Bobbie Ross, psychiatrist, and submits that Dr. Ross diagnoses the applicant with mild traumatic brain injury (TBI) as a result of the accident, which Dr. Ross indicated has transitioned to a diagnosis of post-concussion syndrome.

13The applicant’s submissions indicate that, subsequent to submitting the plan, the applicant proceeded with the neuro-optical assessment proposed by Dr. Wareham. The applicant relies on the findings of Dr. Wareham from a neuro-optometric assessment indicated to be dated December 19, 2022.

14I note that the applicant’s submissions included links to tabs of evidence, however, the tab for the neuro-optometric assessment of Dr. Wareham did not link to that assessment and therefore it is not in evidence.

15The respondent submits that the plan is neither reasonable nor necessary as a result of the accident due to a lack of support in the medical records between the accident and the applicant’s current complaints. The basis of the respondent’s submissions are that the applicant’s current complaints are either pre-existing (with no change subsequent to the accident) or unrelated to the accident.

16I find that the applicant has not provided compelling contemporaneous evidence to support a finding on a balance of probabilities that the plan for a neuro-optical assessment is reasonable and necessary for the following reasons.

17Firstly, the report of Dr. Ross which the applicant relies on, specifically states that she does not recommend any further assessments. Dr. Ross does not make any diagnosis or direct findings regarding the applicant’s vision. The report simply makes one background reference to Dr. McIlraith’s September 16, 2019 consultation reporting letter where Dr. McIlraith suggested a re-evaluation with William Clarke, an optometrist that the applicant saw sometime in the 1990s, may be helpful. I find that Dr. Ross’ report does not support a neuro-optometric assessment.

18Secondly, I give little weight to Dr. McIlraith’s comment that it may be helpful for the applicant to be re-evaluated by her optometrist, Mr. Clarke. I find that this to be a general recommendation made by Dr. McIlraith in his consultation reporting letter dated September 16, 2019, which the applicant refers to as a report but which I find to be more akin to a reporting letter to the referring doctor. I also find it is not contemporaneous evidence since the consultation with Dr. McIlraith occurred more than 3 years before the plan in dispute was submitted to the respondent for consideration.

19Finally, as previously noted, the applicant relies in her submissions on the findings from a neuro-optometric assessment by Dr. Wareham conducted after submitting the plan at issue. However, the fact the applicant undertook the assessment is not evidence that it is reasonable and necessary. Further, as the assessment is not in evidence before me, I have not considered it in making my findings.

20Accordingly, I do not find on a balance of probabilities that the plan for a neuro-optometric assessment is reasonable and necessary.

Issue 2: Prolotherapy

21I find that the applicant has proven on a balance of probabilities that the plan for prolotherapy is reasonable and necessary.

22The August 23, 2022 plan was prepared by Dr. Erik Ouellette, physician, and sought the following treatment: 6 sessions of pharmacotherapy (local), spinal vertebrae, at a cost of $2,580.00 (6 x $430.00). The goals of this spinal injection therapy plan include pain reduction, increased range of motion and strength, and a return to activities of normal living. The plan identifies a prior diagnosis of cervical dysfunction with spinal stenosis but notes that symptoms significantly increased after the accident. The plan also notes that the applicant is followed by a neurologist and neurosurgeon.

23The applicant submits the plan for prolotherapy is reasonable and necessary to help alleviate her ongoing pain. In support of her position, the applicant relies upon a s. 25 assessment of Dr. Alex McKee, physiatrist, dated May 26, 2021. The assessment was conducted by an in-person physical examination and document review. Dr. McKee diagnosed the applicant with multiple conditions, including cervical spine dysfunction with multilevel cervical facet joint injury, and injury to interspinous ligaments in the lower back. Dr McKee opined that the applicant would be a potential candidate for prolotherapy injections to treat her ligaments.

24In further support of her position, the applicant refers to a s. 44 insurer’s examination (“IE”) report of Dr. Albert Cheng, physiatrist, dated February 1, 2022, conducted at the request of the respondent. The applicant submits that Dr. Cheng agreed with many of Dr. McKee's findings, including the evidence of cervical facet joint injury, and also diagnosed iliolumbar ligament injury and chronic myofascial pain as contributors to her low back symptoms. Dr. Cheng also concurred with Dr. McKee's findings of interspinous ligament involvement in the lower thoracic and through the lumbar spine and the iliolumbar ligaments bilaterally, further noting that injuries to these ligaments can contribute to ongoing spinal dysfunction after traumatic injury.

25The respondent submits that the plan is neither reasonable nor necessary as a result of the accident due to a lack of support in the medical records between the accident and the applicant’s current complaints. The respondent’s submissions highlight an IE report of Dr. Raymond Zabieliauskas, physiatrist, dated February 19, 2021, in which Dr. Zabieliauskas concluded that:

i. No further facility-based treatment or rehabilitation services are required as a result of the accident; and

ii. The accident injuries would take no more than 6 months to resolve to the baseline pre-accident chronic pain levels that the applicant had experienced for years in her neck, back, right shoulder and knees.

26In considering the findings and conclusions of the applicant’s assessment report of Dr. McKee as compared to the respondent’s IE report of Dr. Zabieliauskas, I give greater weight to Dr. McKee’s report for the following reasons:

i. A further IE assessment was conducted at the request of the respondent by Dr. Cheng, physiatrist, dated February 1, 2022. This in-person assessment concurred with certain of Dr. McKee’s findings, including that the accident-related injuries appear to have resulted in a material worsening of pre-existing neck and back pain are related functional abilities;

ii. Dr. McKee’s assessment was conducted by in-person physical examination in contrast with Dr. Zabieliauskas who conducted a remote assessment via videoconference. I accept Dr. McKee’s view in his addendum assessment dated December 28, 2022 that the diagnoses could not be made without a complete physical examination; and

iii. Dr. McKee’s assessment thoroughly reviews other medical evidence which he used to draw a comparison between the severity of the applicant's pre-accident impairments and the more severe impairments she lives with post-accident.

27The applicant refers in her submissions to the findings of a July 14, 2023 Tribunal decision addressing other plans involving the same parties and same accident that is now before the Tribunal, and which the applicant asserts considered the same assessment reports and preferred Dr. McKee’s report over that of Dr. Zabieliauskas. I am not bound by other Tribunal decisions, regardless of whether or not it in involves the same parties and/or accident. I do note, however, that the reasoning in that decision regarding giving greater weight to Dr. McKee’s report is consistent with my findings.

28Accordingly, I find on a balance of probabilities that the plan for prolotherapy is reasonable and necessary.

Issue 3: Remaining balance for psychological services and assessment

29I find that the applicant has not proven on a balance of probabilities that the remaining balance for psychological services and assessment is reasonable and necessary.

30The September 18, 2023 plan proposing the psychological services and assessment was prepared by Dr. Julie Gosselin, psychologist, was in the amount of $4,940.28. The plan proposed the following:

i. $900.00 for assessment, mental health and addictions;

ii. $141.61 for planning, service;

iii. $100.00 for educational material;

iv. $37.40 for test, mental health and addictions;

v. $224.42 for therapy, mental health and addictions;

vi. $448.83 for documentation, support activity; and

vii. $200.00 for documentation, support activity for claim form

31The goals of the plan were to address psychological impairments and a return to pre-accident level of psychological functioning. The plan indicates that psychotherapy will be provided by Viktoria Tolmatshov, psychotherapist, under the direct supervision of Dr. Gosselin.

32On August 30, 2023, the respondent sent the applicant an explanation of benefits (“EOB”), outlining the approved expenses and partially denying the services and assessment as not reasonable and necessary. The EOB approved $2,660.56 of the plan, leaving a balance of $2,279.68 which was comprised of:

i. $900.00 for assessment, mental health and addictions;

ii. $58.18 for planning service;

iii. $448.80 (12 x $37.40) for test, mental health and addictions;

iv. $698.16 for therapy, mental health and addictions; and

v. $174.54 for documentation, support activity.

33The respondent denied the assessment on the basis that it is duplicative of a prior approved plan in which an assessment was completed on April 26, 2021. The 20 minute segments of testing were denied as an excessive cost that his not been supported. The remaining denial related to an hourly rate differential, with the respondent prepared to pay up to $91.43 per hour for the services of a registered psychotherapist, rather than an hourly rate of $149.61 that applies to registered psychologists under the Professional Services Guideline (the “Guideline”).

34The applicant submits the denied portion of the psychological services and assessment are reasonable and necessary. The applicant’s position is that the existing psychological assessment was prepared by a different assessor 2.5 years prior to the request for a current assessment and such existing assessment would thus not provide up to date findings on the applicant’s current state. The applicant submits that ongoing testing, or mini-testing, is an option open to the psychotherapist to respond to the client’s individual needs in each session.

35While the applicant has provided a position as to why they think an updated assessment would be preferred, the applicant has not advanced any evidence to support this. I do not find the applicant’s explanation that ongoing testing is an option open to a psychotherapist to be a compelling argument based on any evidence.

36Regarding the hourly rate differential, the applicant noted that Ms. Tolmatshov, a psychotherapist, is qualified to provide cognitive behavioural therapy (“CBT”) and cited the Tribunal’s December 24, 2019 reconsideration decision in J.V. v. Intact Insurance Company, 2019 CanLII 130366 (ON LAT) (“18-007991”) to support the argument a registered psychotherapist who is trained in CBT is entitled to be paid at a rate of $149.61 per hour for such services.

37As is noted in the EOB, psychotherapists do not appear as Guideline. I find no compelling evidence to support that Ms. Tolmatshov, a psychotherapist, is entitled to be paid the same hourly rate as a psychologist, as set out in the Guideline. The only authority provided by the applicant in support of this position is the Tribunal’s decision in 18-007991. I am not bound by other Tribunal decisions. I also find that decision to be distinguishable from the current matter. In 18-007991, the plan was prepared by the psychotherapist who was also listed as the treatment provider. As well, the psychotherapist was not working under the supervision of a psychologist when providing the CBT sessions.

38Accordingly, I do not find on a balance of probabilities that the applicant is entitled to the remaining balance for psychological services and assessment.

Interest

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to payment for the treatment plan for prolotherapy, interest will apply to that treatment plan.

ORDER

40The applicant is not entitled to the plan for a neuro-optometric assessment or to the remaining balance for the plan for psychological services and assessment.

41The applicant is entitled to the plan for prolotherapy plus interest.