Joy Dietrich v. CAA Insurance Company, 2025 CanLII 39279

Citation: Dietrich v. CAA Insurance Company, 2025 ONLAT 23-000577/AABS-R

RECONSIDERATION DECISION

Before: Tanjoyt Deol

Licence Appeal Tribunal File Number: 23-000577/AABS

Case Name: Joy Dietrich v. CAA Insurance Company

Written Submissions by:

For the Applicant: Ayub Shahzad, Counsel

For the Respondent: Jeffrey Pasternak, Counsel

OVERVIEW

1On February 18, 2025, the applicant requested reconsideration of the Tribunal’s decision dated January 28, 2025 (“decision”).

2Following a written hearing, I issued the decision. In the decision, I found that the applicant was not entitled to Income Replacement Benefits, the two disputed treatment plans (“OCF-18s”), interest or an award.

3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or

c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

4The applicant is seeking reconsideration, pursuant to Rule 18.2(b), with respect to the OCF-18s for chiropractic services in the amounts of $329.99 and $2,486.41, and an award. As a result, the applicant asks the Tribunal to render a decision finding that she is entitled to the OCF-18s in dispute, under s. 38(11)2 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”), and an award in the amount of 50%.

5The respondent argues that the reconsideration request should be dismissed, because the Tribunal did not err in law or fact in the decision.

RESULT

6The applicant’s reconsideration request is dismissed.

ANALYSIS

7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

Rule 18.2(b): The applicant has not shown that I made an error of law or fact such that I would likely have reached a different result had the error not been made

8I find the applicant has not established any error of law or fact in the decision that would likely have led me to a different outcome had the error not been made.

9The applicant argues that the decision breaches the “Tomec Rules” as set out by the Court of Appeal in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”) for two reasons. The first being that my determination that an OCF-18 alone is not compelling evidence is incompatible with s. 15 and s. 38(8) and the consumer protection nature of the Schedule. The second being that I incorrectly determined that a denial provided by a non health practitioner can be considered credible compared to an opinion provided by a certified health practitioner. In essence, the applicant argues that my decision with respect to the OCF-18s for chiropractic services is incompatible with the principles of statutory interpretation and consumer protection as set out in Tomec.

10The respondent argues that the decision did not breach the principles set out in Tomec.

(a) No error in determining that an OCF-18 alone is not compelling evidence and concluding that the denial letter, dated April 23, 2021 was compliant with s. 38(8)

11The applicant submits that paragraph 50 of the decision, where I determined that an OCF-18 alone is not compelling evidence, is incompatible with the legislative intent of the Schedule, and therefore does not follow the principles of statutory interpretation. The applicant argues that the OCF-18 itself is completed by a duly qualified health practitioner and contains a warning section, therefore the health practitioner is certain that the proposed treatment is reasonable and necessary. Thus, the applicant argues that, since the OCF-18 was created to allow only certain health practitioners to complete the form with a warning section, then the OCF-18 is a certified medical opinion, which the legislature intended to be payable. The applicant further argues that this intent is clear, as s. 15(1) of the Schedule does not require anything beyond the OCF-18 itself for the treatment to be reasonable and necessary.

12I note that the above-noted submissions were largely made at first instance, however, these arguments were not the key arguments of the applicant, and therefore were not addressed in the decision. I further note that the purpose of reconsideration is not for parties to re-argue their case, however, I find in these circumstances, I will deal with these arguments and address them below.

13I disagree with the applicant’s submissions and see no error in my determination from paragraphs 49 to 55 that the respondent’s denial letter, dated April 23, 2021 was compliant with s. 38(8), because it provided the medical and all of the other reasons for the denial. Specifically, the letter indicated that no compelling medical evidence had been provided to support that the shoulder support brace was required as a result of the accident.

14Moreover, I find that paragraph 50 of the decision, where I determined that an OCF-18 by itself is not compelling evidence, but rather a form used to apply for treatment, is consistent with the principles of statutory interpretation and the consumer protection nature of the Schedule. This is because it is trite law from this Tribunal that an OCF-18 by itself is not compelling medical evidence, and the applicant has not directed me to an authority that supports her interpretation. Indeed, Tomec does not state that an OCF-18 alone constitutes as compelling evidence and therefore the OCF-18 is payable.

15In my view, the scheme, object, and intention of the legislature with respect to OCF-18s were that these forms will be completed by certain health practitioners to petition an insurer for treatment, as reflected in s. 15 and s. 38(3)(c) of the Schedule. In other words, the purpose behind the OCF-18s is to serve as forms for health practitioners to complete in order for insurers to consider whether the treatment is reasonable and necessary based on the insured’s condition. Moreover, the purpose of s. 38(3) is to include the minimal requirements that an OCF-18 must contain before the insurer gives it consideration, not that an OCF-18 is automatically payable if a health practitioner submits that the treatment is reasonable and necessary. In my view, the applicant has not shown that the purpose of either s. 15 or s. 38(3)(c) was for OCF-18s to be payable automatically without other evidence. This payment requirement would have been explicitly stated by the legislature, but it wasn’t.

16The legislature has used clear wording in other sections to indicate when an OCF-18 is payable by an insurer, like s. 38(11) and s. 40(8) of the Schedule. Section 38(11) is very clear that if an insurer is in breach of s. 38(8), then the treatment plan is payable for the non-compliant period, and s. 40(8) provides that, if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits and/or assessments incurred under the MIG are deemed reasonable and necessary. In contrast, s. 15 states that an insurer shall pay for all reasonable and necessary expenses, not that an OCF-18 by itself renders the benefit reasonable and necessary. Likewise, s. 38(3) states the minimal requirements that an OCF-18 must contain, not that it is deemed reasonable and necessary by itself.

17The applicant further argues that to require insured persons to provide evidence beyond the OCF-18 is onerous, and it would not serve the Schedule’s purpose of dispensing with benefits efficiently and expeditiously. I disagree, because this position would lead to an absurd result. This result would offend the principles of statutory interpretation set out by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), at paragraph 27:

It is a well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88).

18If the applicant’s interpretation of the Schedule was accepted, it would allow every OCF-18 to be payable, so long as the health practitioner confirmed the treatment was reasonable and necessary. It would render meaningless the insurer’s legal right to review and, where appropriate, deny the treatment plan with reasons, pursuant to s. 38(8) of the Schedule. This interpretation would lead to an absurd result. Moreover, while the Schedule has a consumer protection mandate, it should not lead to unreasonable, inequitable, or illogical results.

19The applicant argues that it was unreasonable of the Tribunal to presume at paragraph 50 of the decision that an OCF-18 is a form to apply for treatment, because such an interpretation would mean that it plays no meaningful role whatsoever. I disagree. An OCF-18 is precisely the form to apply for treatment as Part 10 of the OCF-18 expressly contains the applicant’s acknowledgment that they “understand that payment for this Treatment and Assessment Plan is subject to the approval of the insurer” (my emphasis), and therefore it is consistent with s. 38(8) of the Schedule. The OCF-18 plays a meaningful role because it allows the applicant to provide some key information required by an insurer to determine whether the claimed benefit is payable. I find that the applicant has not established any error of law or fact in arriving at the conclusion in paragraph 50, as it is well-accepted that the purpose of an OCF-18 is to apply for treatment. It is also trite law that an OCF-18 alone is not compelling evidence.

20In conclusion, the applicant has demonstrated no error of fact or law in my conclusion that the respondent’s denial letter of April 23, 2021 being compliant with s. 38(8) and that an OCF-18 by itself is not compelling evidence but rather a form that is used to apply for treatment.

No error of fact or law in concluding that the denial letter of January 6, 2022 was compliant with s. 38(8) of the Schedule

21At the written hearing, the applicant argued that an OCF-18 for chiropractic services in the amount of $2,486.41, dated December 20, 2021, was payable under s. 38(11) of the Schedule. As noted at paragraph 56 of the decision, I found that the respondent’s denial letter dated January 6, 2022 was compliant with s. 38(8) of the Schedule and the applicant did not meet her onus to establish that the OCF-18 was reasonable and necessary. Thus, the OCF-18 was not payable.

22The applicant argues that paragraph 62 of the decision leads to “absurdity” for the following reasons. First, the applicant argues that “reasonable non health practitioners” around the world view medical reasons provided by health practitioners to be sound, credible, and reliable when given, and are “skeptical, if not outright dismissive” of medical reasons provided by non health practitioners. Second, the purpose of s. 38(8) is not for adjusters, who are non health practitioners, to provide opinions regarding the medical merits of treatment proposed by qualified health practitioners. Rather, the applicant argues that the purpose of s. 38(8) is for insurers to pay for treatment, and only deny it in “extremely limited circumstances”, such as if the OCF-18 is submitted by a non health practitioner, the health care practitioner had suspended credentials, clear indication of negligence or a clear indication of fraud.

23I find that the applicant’s submissions on this issue are largely a recitation of her submissions at first instance, which is not the purpose of a reconsideration. At paragraph 57 of the decision, I noted that the applicant argues that, if a review was done by a non health practitioner, then the denial was not credible. I rejected this position at paragraph 62 of the decision, because there is no such requirement in the Schedule or the prevailing case-law. The applicant has not established any error of fact or law in arriving at this conclusion, especially when the legal test is not how “reasonable non-health practitioners” would view the denial, but rather if the reasons were clear and sufficient to allow an unsophisticated person to make an informed decision as to whether to dispute the decision, as noted at paragraph 60 of the decision.

24I also find that my determination at paragraphs 60 to 65 of the decision, that the respondent’s denial letter satisfied the requirements of s. 38(8), does not lead to an absurd result. This is because s. 38(8) is clear that the insurer must provide the medical and all of the other reasons why the treatment plan is not reasonable and necessary, which was done here as the denial letter advised the applicant that treatment had been approved already for $15,982.72, and there was no compelling evidence from the applicant’s family physician beyond May of 2021 to support further therapy. The applicant’s argument that non health practitioners, like adjusters, cannot provide opinions with respect to treatment is contrary to the explicit wording contained in s. 38(8), because it states that is what insurers must do. The Schedule does not support the applicant’s interpretation that insurers’ denials must be issued by health practitioners. Had the Legislature intended a denial under s. 38(8) to be issued by a regulated health practitioner, it would have done as it did in s. 38(3)(b) to require an OCF-18 to be completed and signed by a regulated health practitioner. The applicant attempts to read a requirement into the Schedule that does not exist and has no support for.

25Against the applicant’s argument, the purpose of s. 38(8) is not for insurers to deny treatment in only “extremely limited circumstances”, but rather, if there is a denial, it must contain the medical and all of the other reasons for doing so, which was done here.

26The applicant also argues that the legislature did not intend to provide insurers with an opportunity to comprehensively review the medical basis for treatment contained in an OCF-18 by a non-health practitioner because a 10 business day limit was set out in s. 38(8). In the applicant’s view, it would be an “uphill battle” to provide a credible and compelling opinion within this deadline, therefore the legislature did not intend for adjusters to provide an opinion with respect to a medical opinion. I do not concur with these arguments because as noted under s. 38(8), it is the insurer’s obligation to provide the medical reasons and all of the other reasons on why the OCF-18 is not reasonable and necessary. Therefore, the respondent is obliged under s. 38(8) to review the applicant’s file, including the medical opinions and provide the medical and all the other reasons on why the OCF-18 is not reasonable and necessary. In my view, the fact that the legislature wanted a response within 10 business days, does not equate to a finding that only a medical professional can provide this denial, because s. 38(8) states that the insurer shall, not a medical professional.

27Finally, the applicant argues that my decision “flips the script” such that opinions provided by non health practitioners are credible, and opinions by health practitioners are not credible. I presume from this wording that the applicant is arguing that I reversed the onus onto her, rather than the respondent under s. 38(8). I disagree, because I provided reasons in paragraph 60 to 65 on why the respondent’s denial letter was compliant with s. 38(8) of the Schedule. The letter provided a principled rationale, based on the applicant’s file, to which she could respond. I also did not conclude in my decision that the OCF-18 was not credible, rather I concluded that the respondent advised the applicant that it had approved $15,928.72 and had not received updated medical records to justify further treatment.

28Like every other insured person, the applicant may dispute the insurer’s denial of a claimed benefit, as she did so in this case. It is up to each insured person to meet their burden of proving their entitlement to a benefit, not for the respondent to disprove it.

29The applicant may disagree with my finding; however, the reconsideration process is not an opportunity for a party to re-litigate their position where they disagree with the decision. As such, I do not find that the applicant has established an error in law or fact in my analysis.

Award

30As the applicant was unsuccessful with her reconsideration request, there was no error of law or fact in paragraph 68 of the decision, where it was determined that as the applicant was not entitled to any benefits. It follows that no benefits were unreasonably withheld or denied. My decision on the award remains unchanged.

CONCLUSION & ORDER

31The applicant’s reconsideration request is dismissed.

Tanjoyt Deol Adjudicator Tribunals Ontario – Licence Appeal Tribunal