Applicant Fails to Submit OCF-18 - NH and Aviva Insurance Canada, 2018 CanLII 13181 ON LAT 17-001309

May 28, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

NH and Aviva Insurance Canada, 2018 CanLII 13181 ON LAT 17-001309

Decision Date: January 30, 2018
Heard Before: Adjudicator Gemma Harmison

MEDICAL BENEFITS: applicant fails to submit OCF-18; applicant fails to show treatment reasonable and necessary;

NH was involved in a motor vehicle accident on February 5, 2015. She sought benefits from Aviva pursuant to the SABS and submitted an application to the LAT following Aviva’s denial of certain benefits.

Issues:

1. Is NH entitled to receive a medical benefit in the amount of $6,080.00 for optometric services, recommended by optometrist Dr. Shirley Ha in a treatment plan submitted on June 13, 2016, denied by Aviva on September 19, 2016?
2. Is NH entitled to interest on any overdue payment of benefits?
3. Is NH entitled to costs of the proceeding?

RESULT:

1. NH is not entitled to receive a medical benefit for optometric services in the amount of $6,080.00;
2. Since no benefit is ordered payable, NH is not entitled to interest;
3. NH is not entitled to costs of the proceeding.

NH was driving her vehicle when another vehicle struck her vehicle on the front passenger side. Following the accident, NH attended appointments with her family physician who diagnosed NH with a concussion and post-concussion syndrome. Dr. Blew referred NH to a neurologist who agreed NH presented with various features of post-concussion syndrome and who in turn referred NH to a neuro-otologist, and also to a neuropsychologist at a concussion clinic. Dr. Robertson concluded that NH demonstrated evidence of uncompensated right peripheral vestibulopathy and intermittent benign paroxysmal positional vertigo. NH was referred for physiotherapy incorporating vestibular and vision exercises, which has been funded by Aviva.

It is the position of NH that the proposed optometric services are reasonable and necessary, and that medical records and other documents included in her evidence for the hearing supports her position. Aviva asserts that NH is not entitled to the disputed optometric services for two reasons. First, it contends that NH’s claim for the disputed optometric services should be dismissed outright because NH did not submit a copy of the OCF-18 in her evidence for the hearing. Alternatively, Aviva argues that the proposed optometric services are not reasonable and necessary, relying on the conclusions and opinion of its Insurer Examination (IE) assessor.

NH bears the onus of proving, on a balance of probabilities, that the proposed optometric services are reasonable and necessary. The Adjudicator found that she has failed to meet that onus for the following reasons. NH did not submit in her evidence for the hearing the OCF-18 that is in dispute. Aviva argues that NH’s failure to submit the OCF-18 as evidence warrants the dismissal of her claim outright given the “well established criteria in the jurisprudence” that a trier of fact is to consider when determining whether treatment is reasonable and necessary. Aviva pointed me to arbitral decisions of the Financial Services Commission of Ontario (FSCO) outlining the criteria used by FSCO arbitrators when determining whether treatment is reasonable and necessary. While FSCO decisions are not binding on me, the Adjudicator found the criteria set out in those decisions to be reasonable and I adopt the same criteria, of which, notably, include that:

1. The treatment goals must be identified, the goals must be reasonable and should be met to a reasonable degree.
2. The treatment should be appropriate to the goals and to the person.

Given the above, the OCF-18 is of vital importance in determining whether the proposed services are reasonable and necessary. When completing the OCF-18 the doctor would have been asked to identify the goals of the proposed treatment, how the treatment will achieve those goals, and how the identified goals would be evaluated. NH’s failure to submit the OCF-18 in her evidence for this hearing has deprived the Tribunal of the ability to fully and properly assess the reasonableness and necessity of the disputed treatment plan, and accordingly find she has not met her onus of proving the treatment plan is reasonable and necessary.

Second, having reviewed the parties’ submissions, including the evidence NH did submit for the hearing, She has not otherwise proven that the disputed treatment plan is reasonable and necessary.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.