Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-006659/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:
Elanya K Dejesus
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Dr. Jordan Palmer, Counsel
For the Respondent:
Nicholas Mester, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Elanya Dejesus, the applicant, was involved in an automobile accident on July 22, 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, 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 $4,520.00 for optometric services, proposed by Dr. Fabian Tai & Associates in a treatment plan dated June 8, 2021?
ii. Is the applicant entitled to $2,200.00 for optometric services, proposed by Dr. Fabian Tai & Associates in a treatment plan dated June 27, 2022?
iii. Is the applicant entitled to $1,939.38 for goods and services, proposed by the Speech Therapy Centers in a treatment plan dated October 25, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the treatment plans in dispute or interest.
ANALYSIS
4Sections 14 and 15 of the Schedule set out that an insurer is liable to pay medical benefits that shall cover all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.
OCF-18 dated June 8, 2021 for optometric services in the amount of $4,520.00 and OCF-18 dated June 27, 2022 for an eye assessment in the amount of $2,200.00
5I find that the applicant has not established that the OCF-18s for optometric services or the eye assessment are reasonable and necessary.
6The OCF-18 dated June 8, 2021 proposed sixteen sessions of sight training, testing and documentation. The stated goals of the optometric services included remediating visual dysfunction and a return to activities to normal living. The applicant has not provided details or a copy of the OCF-18 for an eye assessment.
7The applicant submits that treatment for her optical issues is reasonable and necessary. She argues that the medical evidence establishes that she sustained a concussion as a result of the accident, and that the respondent had previously approved eyewear and treatment recommended by Dr. Tai. Despite this prior approval, the respondent is now denying the needed treatment without conducting any s. 44 assessments or calling medical evidence to dispute the treatment plans. The applicant submits that in the absence of any evidence from the respondent, the determination of her treatment provider that further treatment and an assessment are reasonable and necessary, should be accepted.
8The respondent submits that the applicant is attempting to reverse the burden of proof. It argues that an insurer is not obliged to conduct s. 44 assessments and that the applicant bears the burden to prove that all of the proposed treatment and assessments are reasonable and necessary. The respondent submits that the only evidence in support of the continued treatment or assessment is from the privately funded treatment provider, who has a financial incentive to recommend further treatment. However, the OHIP records disclose that the applicant only once complained of any visual impairment issues, in August 2019. The respondent further submits that the applicant is extremely high functioning, resuming her courses at the University of Waterloo with no diminishment in marks, returning to work and volunteering.
9I find that the applicant has not met her burden to prove that the proposed optometric treatment and assessment are reasonable and necessary.
10While the medical evidence does establish that the applicant was diagnosed with a concussion post-accident, the clinical notes and records (“CNRs”) from the applicant’s walk in clinic do not reveal ongoing visual complaints. Although the applicant attended at her family physician’s office regularly in the years post-accident for unrelated medical concerns, the CNRs do not reveal any visual complaints post-August 2019, referrals for eye-related treatment or assessments. The applicant does not direct me to any further objective medical evidence recommending ongoing optometric care.
11I further am not persuaded by the applicant’s argument that the optometric treatment and assessment must be found reasonable and necessary because such treatment had been previously approved by the respondent. The respondent’s June 8, 2021 and June 27, 2022 denial letters indicate that the respondent had previously approved sight therapy treatment in preparation for a home-based program and that further medical documentation would be required to establish the need for any additional treatment. The letters also stated that the respondent had not received any such supporting medical documentation to indicate that eye therapy continued to be beneficial three years post-accident.
12The applicant has not provided specific submissions on how the goals of treatment are being met to a reasonable degree. Without specific submissions or medical evidence as to the reasonableness and necessity of the proposed treatment and assessment, I find that the applicant has not established entitlement to the OCF-18s.
The OCF-18 dated October 25, 2021 for speech language services in the amount of $1,939.38 is not reasonable and necessary
13The applicant has not provided specific submissions on the OCF-18, the details of the proposed treatment, or described the stated goals of treatment. Rather, to establish the reasonableness and necessity of continued speech language services, the applicant submits that the four progress reports from her treatment provider indicate that while the applicant had made progress, she had not yet achieved all of her goals. The applicant also argues that the respondent had previously approved such treatment, and that the respondent had not conducted a s. 44 examination prior to denying the OCF-18.
14The respondent denied the OCF-18 by way of letter dated October 25, 2021 stating that it had already approved 48 sessions of speech language pathology treatment, and that the applicant appeared to have reached many of the goals set out in the treatment plan. The denial letter further stated that compelling medical documentation had not been provided to indicate how such treatment continued to assist with the applicant’s accident-related impairments 27 months after the accident.
15I find that the applicant has not met her onus to prove that the proposed speech language services are reasonable and necessary. Other than the progress report from the treatment provider, Speech Therapy Canada, the applicant does not direct me to any medical evidence that additional speech language pathology treatment was being recommended more than two years post-accident.
16The CNRs of the applicant’s walk-in clinic reveal that in 2019, the applicant was referred to a neurologist for concussion treatment. In an October 1, 2019 letter, Dr. Evan Lewis, neurologist, indicated that as part of her treatment the applicant would be referred for a cognitive communication assessment and would be contacted by Speech Therapy Canada. Over the next two years the applicant appears to have had multiple sessions of speech pathology treatment. However, she does not direct me to any evidence that such treatment was still being recommended by her neurologist Dr. Lewis, or any treating physician, two years later. The CNRs of the walk-in clinic do not reveal any other entry post October 2019 where speech or communication issues were identified. Particularly in the case of multiple courses of ongoing therapeutic treatment, objective evidence is required to establish the efficacy of continued treatment, years after the accident.
17I agree with the respondent that the applicant bears the burden to prove that the ongoing treatment is reasonable and necessary. To meet this burden, a claimant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment. The applicant has not provided specific submissions on the treatment plan, its goals, or how they are being met. Nor has the applicant provided submissions to address the respondent’s argument that she was extremely high functioning, was able to resume her courses at the University of Waterloo without any diminishment in her marks, returned to work, volunteering and wrote the LSAT.
18As such, I find that the applicant has not established entitlement to the OCF-18 for speech language treatment.
Interest
19Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that no benefits are owing, accordingly, no payments are overdue.
ORDER
20For the reasons outlined above, I find that:
i. The applicant is not entitled to the treatment plans in dispute or interest; and
ii. The application is dismissed.
Released: March 27, 2025
Ulana Pahuta
Adjudicator