Zemo v. Co-operators General Insurance Company, 2025 CanLII 105118

Zemo v. Co-operators General Insurance Company, 2025 CanLII 105118

Citation: Zemo v. Co-operators General Insurance Company, 2025 ONLAT 23-014112/AABS

Licence Appeal Tribunal File Number: 23-014112/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:

Daniel Zemo

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Joshua Meshack, Counsel

For the Respondent: Amanda Lennox, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Daniel Zemo, the applicant, was involved in an automobile accident on December 20, 2020, 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, Co-operators 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. Are the applicant’s injuries predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $4,724.96 for psychological services, proposed by Sarvin Sabet Psychological Services in a treatment plan/OCF-18 (“plan”) dated August 9, 2022?

iii. Is the applicant entitled to $2,200.00 for psychological assessment proposed by Sarvin Sabet Psychological Services in a plan dated March 9, 2022?

iv. Is the applicant entitled to the assessments and services proposed by Pivotal Rehab and Wellness, as follows:

a. $2,200.00 for a chronic pain assessment, in a plan dated December 18, 2023?

b. $2,200.00 for a neurological assessment, in a plan dated December 18, 2023?

c. $5,065.90 for psychological services, in a plan dated November 30, 2023?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not demonstrated on a balance or probabilities that removal from the MIG is warranted for his accident-related injuries.

4The parties do not indicate in their written hearing submissions whether the MIG limits are exhausted. The applicant is entitled to treatment up to the MIG limits. Since I have determined that the applicant is subject to the MIG, it is not necessary to consider whether the treatment plans in dispute are reasonable and necessary.

5The respondent’s denials of the disputed plans were proper notices in accordance with s.38(8) of the Schedule, and therefore, those treatment plans are not payable pursuant to s.38(11) of the Schedule.

6The applicant is not entitled to interest or an award.

PROCEDURAL ISSUES

The applicant’s motion to extend the timeline for submissions is granted and the request for adjournment is denied

7I find that the applicant’s request for an adjournment is denied because the applicant made no submissions to explain the reasons for the adjournment, pursuant to Rule 16.1 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”).

8On January 8, 2025, the applicant filed a request for an adjournment on consent because he served the respondent with his written hearing submissions after the date set out in the Case Conference Report and Order (“CCRO”) dated May 7, 2024.

9Subsequently, on January 20, 2025, the applicant filed a Notice of Motion, on consent requesting that the Tribunal extend the timetable to file submissions for the written hearing scheduled for January 24, 2025 as follows:

i. applicant’s submissions by December 30, 2024;

ii. respondent’s submissions by January 16, 2025; and,

iii. applicant’s reply by January 23, 2025.

10Neither party has filed any submissions in support of either the request for an adjournment or the consent motion to extend the deadline for filing submissions.

11Although the applicant did not make any submissions to explain the reason his written hearing submissions were filed late, since the respondent consents to the extension of time, I am exercising my discretion and allowing the parties to file their submissions in accordance with the new timetable.

ANALYSIS

Applicability of the MIG

The applicant has not demonstrated that he suffers from accident-related injuries that warrant removal from the MIG

12Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

13An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s.18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

14The applicant submits that he should be removed from the MIG based on the following accident-related physical and psychological injuries:

a. his diagnosis of chronic pain, and;

b. his psychological injuries.

a) Chronic pain

15The applicant has not demonstrated on a balance of probabilities that his accident-related injuries fall outside the MIG on the basis of chronic pain.

16The applicant seeks removal from the MIG on the basis of his chronic pain and functional impairments. However, the applicant made no submissions to explain his pre-accident activities and changes in his activity level after the accident. The applicant relies on the clinical notes and records (“CNRs”) of Dr. Khaldon Neami, family physician, and Dr. Jason Ali, general practitioner. However, the applicant has not directed me to any evidence or complaints of chronic pain.

17The applicant makes no submissions regarding his functional limitations under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”). Although, there is no statutory requirement that the applicant must satisfy the criteria in the Guides for MIG removal.

18The respondent submits that the applicant returned to work the next day after the accident, and he did not attend any of his treating physicians in person, including Dr. Neami and Dr. Ali. The respondent submits that Dr. Neami’s CNRs document five teleconference visits from January to June 2021, which are based on the applicant’s self-reporting rather than physical examinations. The respondent further submits that the applicant does not meet the criteria of chronic pain with functional impairment since he returned to work and academic pursuits after the accident; he did not attend his doctors for in person visits; and there is no evidence of medication dependence, social withdrawal or physical deconditioning.

19While it is not binding on the Tribunal to follow the Guides, the criteria set out in the Guides can be a useful tool in assessing an applicant’s claim for chronic pain. The Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse or family;

iii. Secondary physical deconditioning due to disuse and/or fear avoidance of physician activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contracts;

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or non-organic illness behaviours.

20The respondent submits that the applicant has not provided medical documentation in support of a claim for chronic pain with functional impairment to warrant removal from the MIG, and I agree.

21I find that the applicant has not proven on the balance of probabilities that he suffers from accident-related chronic pain with functional impairment warranting removal from the MIG. The evidence suggests that the applicant’s functional abilities are inconsistent with chronic pain with functional impairment. By January 27, 2021, Dr. Neami indicates that the applicant’s neck and back pain are improving. On November 12, 2022, Dr. Ali diagnosed the applicant with whiplash, and referred him to Dr. Peyvand Ashtarani, chronic pain specialist, at the Toronto Poly Clinic. On April 14, 2023, Dr. Ashtarani indicates that the applicant’s neck pain is intermittent, and he has unrelated numbness in his fingers from using a keyboard and his sleep position. Although the applicant made complaints of recurring pain in his neck and back, there is no mention in the CNRs of his treating physicians that the applicant has any functional restrictions.

b) Psychological impairment

22I find that the applicant has not proven on a balance of probabilities that he sustained a psychological condition as a result of the accident such that he should be removed from the MIG on this basis.

23The applicant submits that he should be removed from the MIG on account of his psychological impairment. Although the applicant submits that he made psychological complaints to Dr. Neami and Dr. Ali after the accident, neither Dr. Neami’s nor Dr. Ali’s CNRs mention any psychological complaints.

24The respondent submits that although the applicant may have minor psychological sequelae after the accident, there is no evidence of a specific phobia or psychological impairment. The respondent submits that the applicant did not report any psychological symptoms to his treating physicians, and he only reported symptoms of driving anxiety, low mood and decreased interest and pleasure during a s.25 assessment on May 21, 2022 with Dr. Sarvin Sabet Ghadam, psychologist.

25I find that the applicant has not met his onus of establishing entitlement to treatment beyond the MIG because the medical evidence suggests that he did not suffer a psychological impairment as a result of the accident. Although Ghadam diagnoses the applicant with adjustment disorder, she relies solely on the applicant’s self reporting that his cognitive abilities for memory, problem solving, decision making, planning and organization have changed after the accident in relation to his new job as an application software developer. However, since the applicant did not work in this field before the accident, there is no point of comparison to his pre-accident cognitive abilities. Dr. Ghadam mentions that the applicant reported emotional concerns after the accident, which restrict his recreational and social functioning, but she does not describe these concerns.

26Overall, I find that the applicant has not met his onus of establishing entitlement to treatment beyond the MIG in the absence of any consistent findings in support of chronic pain with functional impairment or psychological impairment.

27The applicant did not make submissions regarding whether the disputed plans are reasonable and necessary but focused on them being payable pursuant to s. 38(11). Regardless, I find that I don’t need to consider whether the plans are reasonable and necessary because the applicant is in the MIG. The applicant is entitled to any remaining MIG amounts.

Section 38(8) of the Schedule

28The focus of the applicant’s argument is that the respondent did not properly deny the three disputed treatment plans for assessments, including a psychological assessment, a chronic pain assessment, and a neurological assessment, as well as two plans for psychological services in accordance with s. 38(8) of the Schedule.

29Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.

30If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that if an insurer fails to provide proper notice of the reasons for its denial it must pay for all incurred goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8). See: Aviva General Insurance Company v. Catic, 2022 ONSC 6000.

31The Tribunal in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ONLAT), has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.

Sufficiency of the Respondent’s Denial of Plan dated August 9, 2022 in the amount of $4,724.96

32The applicant argues that the plan dated August 9, 2022, for psychological services in the amount of $4,724.96 was improperly denied by the respondent. The respondent a letter to the applicant on August 18, 2022 denying the benefit, within 10 business days after receiving the plan. The applicant argues that the respondent’s denials of this plan does not comply with s.38(8) of the Schedule because they do not provide sufficient medical and other reasons for the denial. The applicant also submits that on April 23, 2024, he provided updated medical records, as requested in the denial.

33The respondent stated in its denial letter dated August 18, 2022, that the applicant’s injuries fall under the MIG, and the subsequent information the applicant provided does not support a medical condition that would prevent recovery under the MIG limit. The respondent made requests for further medical documentation in support of the applicant’s removal from the MIG.

34I find that the August 18, 2022 notice was a valid denial letter. The respondent indicated that the applicant’s injuries fall under the MIG, and it had not received any medical information to support an injury to warrant the applicant’s removal from the MIG. The respondent also requested updated medical information to determine whether the applicant sustained a non-minor injury or a medical condition that would prevent recovery under the MIG.

35In my view, this rationale meets the standard set out in 17-003774/AABS v. Aviva Canada Inc, 2018 CanLII 84051 ON LAT (“Aviva”). While not binding on me, I find the following reasoning in Aviva to be persuasive “…an insurer’s ‘medical and any other reasons’ should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decisions or, alternatively, identify information about the insured’s condition that the insurer does not have but requires.”

36Here, the respondent states that it has not received medical evidence of a medical condition that warrants removal from the MIG. The respondent states that the medical evidence it has received suggests that the applicant sustained a minor injury, which is defined as sprain, strain, whiplash…and any clinically associated sequelae to such injury. The respondent requested updated medical records from June 25, 2021, to determine whether the applicant’s injuries fall outside the MIG. As such, I find the respondent’s reference to the MIG, description of the applicant’s injuries as minor and the request for further information in the denial letter was a valid denial of the plan.

37In sum, I find that the August 18, 2022 notice was a valid denial letter. I find that the respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.

38I find on a balance of probabilities that the applicant has not met his burden to establish that this plan is payable under section 38.

Sufficiency of the Respondent’s Denial of OCF-18 dated March 9, 2022 for $2,200.00

39The applicant submitted a plan in the amount of $2,200.00, for a psychological assessment. The respondent wrote to the applicant on March 23, 2022, denying the benefit, within 10 business days of receiving the plan.

40The applicant submits that it was an improper denial as the respondent did not provide a specific medical reason for its denial. The applicant further submits that he provided updated medical records to the respondent on April 23, 2024.

41I find that the March 23, 2022 notice was a valid denial letter. It indicates that the respondent has reviewed the medical information and determined that it does not support the applicant’s entitlement to medical and rehabilitation benefits beyond the MIG. The respondent states that based on the available information, the applicant’s injuries appear to be minor, which includes sprain, strain, whiplash... and any clinically associated sequelae to such an injury. In addition, the respondent requested specific medical documentation is does not have but requires in determining whether the applicant’s injuries require treatment beyond the MIG limits. I find the respondent’s reference to the MIG and minor injury is a valid medical reason.

42Therefore, I find on a balance of probabilities that the applicant has not met his burden to establish that this plan is payable under section 38.

Sufficiency of the Respondent’s Denials of two OCF-18’s dated December 18, 2023 for $2,200.00

43The applicant argues that two plans dated December 18, 2023 for a chronic pain assessment and a neurological assessment by Dr. Michael Gofeld, physician, and Dr. Olga Finlayson, physician submitted by Pivotal Rehab & Wellness, in the amounts of $2,200.00 each were improperly denied by the respondent. The respondent wrote to the applicant on January 3, 2024 denying the benefits, within 10 business days of receiving the plans on December 19, 2023. However, the applicant does not provide an explanation why the respondent’s denials are improper or the reason his injuries fall outside the MIG.

44The applicant submits that the respondent’s denials were generally improper without providing particulars regarding these plans. I find that the January 3, 2024 notice was a valid denial letter. The respondent states that the applicant’s injuries are minor based on the information provided to date. The respondent states that it has not received any compelling medical evidence that the applicant sustained a non-minor injury or that the proposed assessments are reasonable and necessary to address his accident-related injuries. The respondent further states that it has not received the requested specific medical documents listed in its letter dated December 15, 2023.

45Given that the respondent provided proper notice, I find that the applicant has not met his burden to establish entitlement to these plans.

Sufficiency of the Respondent’s Denial of Plan dated November 30, 2023 in the amount of $5,065.90

46The applicant submits that the plan dated November 30, 2023, for psychological services in the amount of $5,065.90 was improperly denied by the respondent. The respondent sent a letter to the applicant on December 15, 2023, denying the benefit, within 10 business days after receiving the plan on December 1, 2023. The applicant argues that the respondent’s denial of this plan does not comply with s.38(8) of the Schedule because they do not provide a specific medical reason for the denial.

47The respondent stated in its denial letter dated December 15, 2023, that based on the available information, and the medical opinion of the applicant’s treating practitioner, the applicant’s injuries fall under the definition of a minor injury. The respondent states that the information provided does not support a medical condition that would prevent recovery under the MIG limit. The respondent made specific requests for updated medical documentation in support of the applicant’s removal from the MIG, including the CNR’s of Dr. Neami or other health professionals, hospital records, and decoded OHIP summary.

48I find that the December 15, 2023 notice was a valid denial letter. The respondent indicates that the applicant’s injuries fall under the MIG, and it had not received updated medical information to support an injury to warrant removal from the MIG. The respondent also requested specific medical information to determine whether the applicant sustained a non-minor injury or a medical condition that would prevent recovery under the MIG.

49Again, the respondent has requested information about the insured’s medical conditions and accident-related injuries that the insurer does not have but requires to determine whether the applicant’s injuries fall outside the MIG. As such, I find the respondent’s reference to the MIG in the denial letter was a valid denial of the plan.

50In sum, I find that the December 15, 2023 notice was a valid denial letter. I find that the respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.

51I find on a balance of probabilities that the applicant has not met his burden to establish that this plan is payable under section 38. Given that the respondent provided compliant denials by identifying the applicant’s condition as minor and requesting information about the applicant that it still requires, I find that the applicant has not met his burden to establish entitlement to the disputed plan.

Interest

52Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant has not discharged his burden to demonstrate removal from the MIG or entitlement to the disputed plans, there are no benefits owing and interest does not apply.

Award

53The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since no benefits are payable, an award under s.10 of Reg. 664 is not warranted.

ORDER

54For the reasons stated above, I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG treatment limit.

ii. The applicant is entitled to treatment up to the MIG limits and, it is not necessary to consider whether the disputed plans are reasonable and necessary.

iii. The respondent’s denials of the disputed plans were proper notice in accordance with s. 38(8) of the Schedule.

iv. Interest is not payable and an award does not apply.

v. The application is dismissed.

Released: October 15, 2025

__________________________

Lisa Holland

Adjudicator