Mitchell v. TD General Insurance Company
Licence Appeal Tribunal File Number: 23-001947/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:
David Mitchell
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Edward Langley
APPEARANCES:
For the Applicant:
Karen Hulan, Counsel
For the Respondent:
Anca Zgardau, Counsel
HEARD:
By way of written submissions
OVERVIEW
1David Mitchell, the applicant, was involved in an automobile accident on October 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, T.D. 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 $2,484.86 for physiotherapy services, proposed by Peter Harley in a plan submitted September 6, 2022 and denied September 7, 2022?
ii. Is the applicant entitled to $14,883.00 for hearing aids, proposed by Dr. Tugalev in a plan submitted October 3, 2022 and denied October 13, 2022?
iii. Is the applicant entitled to $3,345.00 for neuro-visual therapy services, proposed by London Vision Development Centre in a plan submitted October 31, 2022 and denied October 31, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has not demonstrated that the disputed treatment plans are reasonable and necessary.
4No interest is payable.
5The application is dismissed.
ANALYSIS
6To receive payment for a treatment plan under s.15 and s.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.
The applicant is not entitled to the treatment plan for physiotherapy services
7I find that the applicant has not proven on a balance of probabilities that the treatment plan for physiotherapy services is reasonable or necessary.
8The applicant has not identified how the goals would be met to a reasonable degree, nor that the overall costs of the treatments are reasonable. In their clinical notes and records, the applicant’s family doctor recommended physiotherapy treatment. The evidence confirms that this treatment was received by the applicant. Further evidence submitted from the service provider Physiohaus opines that the applicant benefitted from physiotherapy treatment and showed signs of “symptom relief”.
9The respondent’s evidence includes a report issued on January 3, 2023 from Dr. Khan, a physiatrist, who opines that further facility-based treatment for physiotherapy is not expected to provide any further improvement to soft tissue injuries, and that the applicant’s sprain, strain, and soft tissue injuries would heal naturally over time.
10I was not persuaded by the applicant’s evidence on this issue. The applicant did receive earlier physiotherapy treatment, which both sides agree was beneficial to his recovery. On November 22, 2019, the clinical notes and records of the applicant’s family doctor opine that there is evidence of a carpal tunnel injury to the right hand and right shoulder rotator cuff tendonitis tear. A later follow-up visit indicates that the carpal tunnel issue is resolved. While the applicant agrees that more treatment may be necessary, their own evidence from Physiohaus indicates that the applicant did benefit from this treatment. The respondent opines that any additional treatment is not reasonable or necessary as the applicant would not see any further improvement in additional treatment and therefore he has achieved maximum medical recovery.
11On a consideration of the evidence from the applicant and the respondent, I find that the applicant has not proven on a balance of probabilities that the treatment plan for physiotherapy is reasonable or necessary.
The applicant is not entitled to the treatment plan for hearing aids
12I find that the applicant has not proven on a balance of probabilities that the treatment plan for hearing aids is reasonable or necessary.
13The applicant attended an exam with audiologist Paige Pierozynzki on August 19 and September 22 of 2022 for an auditory processing and decreased sound tolerance evaluation. Ms. Pierozynzki opines that the findings were consistent with and suggested that the applicant had a central auditory processing disorder and decreased sound tolerance in both ears. I find there is, however, no evidence presented by the applicant to the possible cause of these findings, nor is there any relation evidence presented that would indicate causation to any accident-related impairments from the motor vehicle accident.
14The respondent submitted as evidence their examination by otolaryngologist Dr. Atlas on November 30, 2022. The applicant did not report any hearing loss but did report noise sensitivity. Dr. Atlas opines that there is no medical evidence that the applicant would require hearing aids. Dr. Atlas went on to submit that the applicant reported no hearing loss, and an earlier audiogram test was normal.
15I was not persuaded by the applicant’s evidence on this issue. The applicant did report chronic auditory problems to his family doctor shortly after the accident. There are no recommendations from the family doctor with respect to this reporting. The applicant did not see an audiologist until 34 months post MVA. The respondent’s Otolaryngologist Dr. Atlas reported that the applicant’s audiogram was normal, and opined that the treatment plan was not reasonable or necessary. Given the time from the accident to the date of Dr. Atlas’ assessment, and the evidence that the applicant’s audiogram was normal, I find the assessment of Dr. Atlas more compelling than the applicant’s evidence.
16On a consideration of the evidence from the applicant and the respondent, I find that the applicant has not proven on a balance of probabilities that the treatment plan for hearing aids is reasonable or necessary.
The applicant is not entitled to the treatment plan for Neuro-visual Therapy
17I find that the applicant has not proven on a balance of probabilities that the treatment plan for Neuro-visual therapy is reasonable or necessary.
18On November 3, 2021, Dr. Khamis, a neuro-optometrist, opined that the applicant will require neuro-visual rehabilitation to alleviate post-concussion vision syndrome. The doctor noted that convergence was insufficient, and there was ocular motor dysfunction. During a follow-up appointment on July 26, 2022, Dr. Khamis noted that the applicant “continues to struggle with eye strain and light sensitivity”, however, “symptoms have improved”. He recommended continuing neuro-visual rehabilitation to further alleviate symptoms.
19The applicant was assessed by Ophthalmologist Dr. Allen on March 1, 2023. The applicant’s vision was 20/20 in both eyes. Each criterion of this test was recorded as normal for the applicant. Dr. Allen opines that there was no light sensitivity noted with this examination. The doctor concludes that he could identify no ophthalmic sequela related to the motor vehicle accident. The neurologist Dr. McLachlen noted in his assessment of December 16, 2022 that there was no evidence of a concussion.
20I was not persuaded by the applicant’s evidence on this issue. The applicant reported to his family doctor on October 22, 2019 that his headaches “were not as they were”. On February 11,2020, the applicant reports to his family doctor that “he has gone from 5 headaches a day to 1 or 2 per day”. The family doctor prescribed medication to alleviate those decreasing headaches. Ophthalmologist Dr. Allen concluded in his report that the applicant showed within the normal range of every criterion examined. He further opined that there was no ophthalmic sequela related to the motor vehicle accident. Dr. Allen concluded that the treatment plan was not reasonable or necessary.
21On a consideration of the evidence from the applicant and the respondent, I find that the applicant has not proven on a balance of probabilities that the treatment plan for neuro-visual therapy is reasonable or necessary.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no outstanding treatment plans, there are no overdue benefits owing. Therefore, interest is not payable.
ORDER
23I find that:
i. The applicant has not demonstrated on a balance of probabilities that the treatment plans on the application are reasonable or necessary.
ii. As there are no outstanding treatment plans owing, interest is not payable.
iii. The application is dismissed.
Released: April 17, 2025
__________________________
Edward Langley
Adjudicator