Tentativa v. Co-operators General Insurance Company, 2025 CanLII 25846

Citation: Tentativa v. Co-operators General Insurance Company, 2025 ONLAT 23-004691/AABS

Licence Appeal Tribunal File Number: 23-004691/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:

Nicole Tentativa

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Julia Logoutova, Paralegal

For the Respondent: Julianne Brimfield, Counsel

HEARD: By way of written submissions

OVERVIEW

1Nicole Tentativa, the applicant, was involved in an automobile accident on March 10, 2021, 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 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to the assessments proposed by Aqua Wellness Centre, as follows:

a. $3,576.50 for Physiotherapy Services, in a treatment plan dated June 2, 2021?;

b. $2,200.00 for a Psychological Assessment, in a treatment plan dated June 7, 2021?

c. $2,681.00 for Physiotherapy Services, in a treatment plan dated July 27, 2021?

d. $2,681.00 for Physiotherapy Services, in a treatment plan dated September 14, 2021?

e. $2,491.00 for Physiotherapy Services, in a treatment plan dated November 16, 2021?

f. $2,291.00 for Physiotherapy Services, in a treatment plan dated September 7, 2022?

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

RESULT

3I find that:

i. The applicant has not met her onus to prove that her injuries warrant removal from the MIG;

ii. The applicant is not entitled to the treatment plans in dispute; and

iii. As no payments are overdue, the applicant is not entitled to interest.

ANALYSIS

Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. 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.”

5An insured person 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 injury or 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.

6The applicant has not provided any substantive submissions on her accident-related impairments, or on what ground she seeks removal from the MIG. No medical evidence was tendered as part of the applicant’s written hearing submissions. Rather, the only submission provided by the applicant on the MIG, is a reference to the Tribunal decision 17-006967 v Certas Home and Auto Insurance Company, 2018 CanLII 95582 (ONLAT), where she states that she is relying on this decision, citing paragraphs 14, 15 and 24.

7In these paragraphs, the Tribunal found that the respondent’s denial notice for a treatment plan was non-compliant with s. 38(8) of the Schedule, and that pursuant to s. 38(11) the applicant “is no longer governed by the MIG and the $3,500.00 cap on benefits for medical treatment or assessment”. From the applicant’s reference to these paragraphs, I infer that the applicant is arguing that the respondent’s denial notices for the treatment plans were non-compliant with s. 38(8) of the Schedule, and that she should be removed from the MIG pursuant to s. 38(11).

8I am not persuaded by the applicant’s argument that she should be removed from the MIG on procedural grounds. In the Divisional Court decision Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707, the Court clearly stated at paragraph 21 that the language used in s. 38(11) refers to the specific treatment plan in dispute and does not fully remove a claimant from the MIG on a permanent basis. In the present matter, even if the respondent provided denial notices that were non-compliant with s. 38(8) of the Schedule, which will be considered in the section on treatment plans below, the remedy specified in s. 38(11) would apply to the individual treatment plans and would not provide a basis for the applicant’s removal from the MIG.

9Given the lack of submissions or medical evidence from the applicant as to her accident-related impairments, I find that she has not met her burden to prove that she should be removed from the MIG.

10The parties confirmed at the case conference that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

11The applicant further argues that all of the treatment plans in dispute are payable pursuant to s. 38(11) of the Schedule, as the respondent did not comply with s. 38(8).

12Section 38(8) of the Schedule requires an insurer to provide its medical and all other reasons for a denial within 10 business days after receipt of a treatment plan. If an insurer fails to provide the requisite denial, under s. 38(11)2 it is required to pay for all goods and services described in the treatment plan that relate to the period incurred from the 11th business day after the treatment plan was submitted until the proper denial is given.

The respondent’s denial notices were compliant with s. 38(8) of the Schedule

13The respondent denied the treatment plans (“OCF-18s”) for physiotherapy services by way of denial letters dated June 3, 2021, August 8, 2021, September 23, 2021, November 22, 2021 and September 15, 2022. The OCF-18 for a psychological assessment was denied by way of a letter dated June 17, 2021.

14The applicant submits that all of the respondent’s denial letters are non-compliant with s. 38(8) of the Schedule. With respect to the denials for the OCF-18s relating to physiotherapy services, the applicant argues that the respondent failed to provide information about the goods and services it refused to pay for. Rather, the letters simply stated that “further treatment” or “physical treatment” was being denied. The applicant further submits that the denials did not provide a description of the applicant’s injuries with a comparison to the injuries that are considered minor under the MIG. Finally, with respect to the denial letter dated June 17, 2021 for the psychological assessment, the applicant submits that the correspondence failed to provide medical reasons for the denial.

15The respondent submits that all of its denial letters properly specify that the denials were based on the MIG, reference the applicable OCF-18, identify the medical documentation it had reviewed and what evidence it still required. The respondent cites Tribunal caselaw to argue that an insurer is not required to fabricate medical reasons, when a claimant has not provided medical evidence and that a denial that identifies the absence of supporting medical records, constitutes sufficient notice.

16I find that the denial letters dated June 3, 2021, June 17, 2021, August 8, 2021, September 23, 2021, November 22, 2021 and September 15, 2022 are compliant with s. 38(8) of the Schedule.

17With respect to the denial notices for the OCF-18s for physiotherapy services, I do not agree with the applicant that the respondent failed to identify what goods or services it denied or agreed to pay for. Each of the letters clearly identify the OCF-18 in dispute, append a copy of the applicable OCF-18 to the correspondence and specify that the respondent is not approving the recommended services or physical treatment. The applicant does not direct me to any provision in the Schedule or caselaw which holds that an itemized breakdown of services is required, particularly in a situation where the full amount of the OCF-18 was being denied (as opposed to a situation where an OCF-18 is only partially denied). I agree with the respondent that from the applicable denial letters, it was clear as to what services were being denied.

18[19] I further find the respondent’s cited caselaw to be persuasive. In Hamad v Travelers Insurance, 2021 CanLII 64246 (ON LAT) the Tribunal found that an insurer is not required to fabricate medical reasons when an applicant has not provided medical evidence, which is exclusively in their control, to support entitlement. In the denial letters dated June 3, 2021, June 17, 2021 and August 6, 2021 the respondent expressly stated that it did not have compelling medical evidence to indicate that the applicant’s injuries fell outside the definition of a minor injury, and that it had not received clinical notes and records from the applicant’s family physician, which had been previously requested on March 16, 2021 and May 6, 2021. As such, the respondent clearly identified the medical information that it was missing and required to establish a non-minor impairment. I agree with the respondent that in the absence of medical records, it would not be required to fabricate a medical reason for the denial.

19With respect to the denial letters dated September 15, 2021, September 23, 2021, and November 22, 2021, the respondent again referenced the MIG and stated that it did not have compelling medical evidence to indicate that the applicant’s injuries fell outside the definition of a minor injury. The correspondence also clearly identified what medical documentation the respondent had reviewed in coming to its determination, and identified the specific medical information it still required from the applicant. I find that these were clear and unequivocal denials, compliant with s. 38(8). The correspondence contains straightforward and clear language, sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

20As such, I find that the respondent’s denial notices were compliant with s. 38(8) of the Schedule. The applicant has not established that the OCF-18s in dispute are payable pursuant to s. 38(11).

Interest

21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are outstanding, the applicant is not entitled to interest.

ORDER

22I find that:

i. The applicant has not met her onus to prove that her injuries warrant removal from the MIG;

ii. The applicant is not entitled to the treatment plans in dispute or interest; and

iii. The application is dismissed.