November 3, 2014

SABS Update – Diligence is a Virtue

Cook v. RBC (FSCO A13-015449)

John Cook was injured in a motor vehicle accident on March 4, 2011. Mr. Cook applied for various benefits under the Statutory Accident Benefits Schedule, and just prior to two years post-accident, submitted an OCF-18 treatment plan for a catastrophic impairment determination evaluation. His insurer denied his application on the basis that it was not reasonable and necessary as Mr. Cook had not completed an application for determination of a catastrophic impairment (OCF-19).

Subsequently, Mr. Cook submitted an OCF-19. His insurer arranged for a CAT insurer assessment which found Mr. Cook to have 7% whole person impairment and a mild level of impairment in all four spheres of functioning. The conclusion was that he is not catastrophically impaired.

Mr. Cook sought funding for a rebuttal CAT assessment. His insurer denied his application on the basis that it had paid out the $50,000 maximum for medical and rehabilitation benefits.



This motion was heard before Arbitrator Stuart Mutch on August 7, 2014. Mr. Mutch applied Bernicky and Guardian Insurance Company of Canada, which is the leading case in determining whether interim expenses ought to be awarded. The arbitrator in Bernicky set out the following criteria for the awarding of interim expenses:

  1. The application must raise a bona fide issue;
  2. The expenses sought are reasonable and necessary for the conduct of the arbitration; and
  3. The applicant is unable to carry the expenses of the arbitration.

Mr. Mutch found that Mr. Cook satisfied all three of the Bernicky criteria, and accordingly, this was a situation where an award of interim expenses was warranted; however, Mr. Mutch was prevented from making such an award on the basis that Mr. Cook had already received over $50,000 in medical and rehabilitation benefits. Mr. Cook’s motion for an interim order was dismissed.


The key implication from this decision is that an insured must be diligent to apply for a determination of a catastrophic impairment before he or she reaches the $50,000 cap for medical and rehabilitation benefits. If an application is not made before the cap is reached, the insured risks having to finance the assessment(s) personally or in cases of financial hardship, being unable to submit to the assessment(s) at all.

Treatment providers and counsel should also be cognizant of impending expense limits and work collaboratively to ensure that the injured person receives the appropriate benefits and does not exhaust limits prematurely.


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