In the recent decision of Johnson v Co-operators General Insurance Company, 2024 CanLII 49023 (ON LAT) Adjudicator Jarda was tasked with determining whether the applicant was entitled to $19,097.00 for a catastrophic impairment assessment in a Treatment and Assessment Plan (OCF-18) that had been submitted to the insurer on March 21, 2020.
After being involved in a September 7, 2012 motor vehicle accident, the applicant was initially treated within the Minor Injury Guidelines (“MIG”). On April 13, 2015, and as a result of a pre-existing psychiatric impairment, he was removed from the MIG. Despite this, by April 13, 2020 (over 7.5 years post-accident), the applicant had only consumed $3,500.00 maximum in medical and rehabilitation benefits under the MIG. Adjudicator Jarda noted that the medical evidence supported that the applicant suffered soft tissue injuries as a result of the accident. The only issue in dispute to be decided was the cost of a catastrophic determination assessment, submitted seven and a half years post-accident.
In an attempt to prove that the OCF-18 in dispute was reasonable and necessary, the applicant relied solely on the “opinion of Dr. Lisa Becker, physician as set out in the additional comments section in the treatment plan”. He alleged continued physical, emotional and psychological injuries as a result of the September 2012 accident. There was no reference to any clinical notes and records, including those of a treating family doctor or physician. The applicant also tried to seek entitlement by alleging a deficient denial notice, claiming that the respondent had failed to give medical and other reasons for the decision to deny the OCF-18.
The respondent, on the other hand, relied on the minor soft tissue injuries and post-traumatic headaches sustained by the applicant as a result of the accident, and the fact that despite having access to $50,000 in non-catastrophic limits, the applicant had only consumed $3,500.00 (after 7.5 years). It was noted that the applicant had failed to adduce any medical evidence to meet the onus of proving that the OCF-18 was reasonable and necessary. Furthermore, it was argued that the applicant was trying to circumvent the legislation as the assessments in dispute far exceeded the $2,000 maximum under s. 25 of the Statutory Accident Benefits Schedule ( “SABS”). Lastly, the respondent denied that its notice was deficient as it had indicated the lack of physical and psychological impairment and causation related to the accident as well as the insufficient evidence of a catastrophic impairment. The respondent also relied on its insurer examinations conducted in 2013 and 2015 .
In his reply, the applicant merely maintained the deficiency of the denial notice and stated that there was a “substantive explanation as to why the multidisciplinary assessments” were reasonable and necessary.
Adjudicator Jarda addressed the relevant provisions of the SABS, specifically ss 15, 16, 45(1), 25(1)5 and 25(5)a, and concluded that the applicant had failed to meet his burden to demonstrate that the proposed assessment plan was reasonable and necessary. It was found that although Dr. Lisa Becker indicated that she had performed a file review, “it was unclear what medical records, if any, were reviewed” in her determination that a catastrophic impairment assessment was reasonable and necessary. Furthermore, Adjudicator Jarda addressed the absence of supporting medical evidence, concluding that the applicant had failed to disclose corroborating medical evidence , and to refer the Tribunal to relevant evidence to demonstrate that the proposed assessment plan was reasonable and necessary. It was held that there was no evidence to support the contention that the applicant had suffered a catastrophic impairment as a result of the September 2012 accident. Similarly, the applicant had failed to establish why the proposed assessments should exceed the $2,000 legislated maximum , or why he had only consumed the MIG monetary limits up to the date of his submissions. With respect to the alleged deficient denial notice, Adjudicator Jarda found that the respondent did not contravene sections 25 and 45 of the SABS. For all these reasons, the assessment plan was not payable and the application was dismissed.
Takeaway
An applicant’s decision to seek a catastrophic designation, or threatening to pursue same, is one that should not be considered lightly. As held by Adjudicator Jarda, it is medical evidence that would support an applicant’s burden. As previously held by the Tribunal, a treatment plan and OCF-18, on its own, is insufficient to demonstrate that an assessment is reasonable and necessary. Furthermore, it is not up the Tribunal to “connect the dots”. The burden of proof, on a balance of probabilities, rests with the applicant and this burden requires that an applicant submit corroborating and relevant medical evidence to the Tribunal, not just bald assertions or submissions that lack an evidentiary foundation.
Tiziana Serpa is a member of the Licence Appeal Tribunal practice group and the author of this blog. If you have questions about this decision or a similar file, please contact Tiziana at 416-777-5209
