Gauthier v. Co-operators General Insurance Company, 2025 CanLII 52385

Citation: Gauthier v. Co-operators General Insurance Company, 2025 ONLAT 23-010051/AABS

Licence Appeal Tribunal File Number: 23-010051/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:

John Gauthier

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Nidhi Vinayak, Counsel

For the Respondent: Julianne Brimfield, Counsel Ethan Edwards, Counsel

HEARD: By way of written submissions

OVERVIEW

1John Gauthier (“the applicant”) was involved in an automobile accident on April 26, 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 Co-operators General Insurance Company (“the respondent”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue to be decided is:

i. Is the applicant barred from proceeding to a hearing for an income replacement benefit (“IRB”) from July 21, 2023 to date and ongoing because the applicant failed to dispute the denial within the two-year limitation period?

SUBSTANTIVE ISSUES

3The substantive 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 an IRB in the amount of $400.00 per week from July 21, 2023 to date and ongoing?

iii. Is the applicant entitled to the assessments proposed by Meditecs Independent Medical Examinations, as follows:

1. $4,407.00 for a Chronic Pain Assessment, in a treatment plan/OCF-18 (“OCF-18”) dated February 4, 2023;
2. $4,011.50 for a Psychological Assessment, in an OCF-18 dated February 4, 2023; and
3. $3,388.28 for an Attendant Care Assessment, in an OCF-18 dated February 4, 2023?

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

RESULT

4With respect to the preliminary issue, I find that:

i. The applicant is statute barred from proceeding with his claim for IRBs for the period outlined in his application to the Tribunal, pursuant to s. 56 of the Schedule.

5With respect to the substantive issues, I find that:

i. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

ii. He is not entitled to the OCF-18s in dispute.

iii. The respondent is not liable to pay an award.

iv. The application is dismissed.

ANALYSIS

The applicant is statute barred from proceeding with his claim for an IRB

6I find the applicant is statute barred from proceeding with his claim for IRBs, pursuant to s. 56 of the Schedule.

7Section 56 of the Schedule provides that an application to dispute a denial of a benefit shall be commenced within two years of the insurer’s refusal to pay.

8However, in order for the provision under s. 56 to be triggered, the respondent must have provided a proper notice of denial, in accordance with the principles set out in Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”). Pursuant to Smith, the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process.

9The respondent argues that the applicant submitted an Application for Accident Benefits (“OCF-1”) on June 9, 2021, which indicated that he was retired at the time of the accident. As a result, the respondent argues that it sent a clear and unequivocal denial letter, dated June 10, 2021, where it advised the applicant that he was not eligible for IRBs, and did not qualify for IRBs as his OCF-1 indicated he was retired. Ultimately, the respondent contends that, as the applicant failed to dispute the denial within the two-year limitation period, he is statute barred from pursuing his IRB claim.

10Meanwhile, the applicant argues that his IRBs were not denied on June 10, 2021, but rather were suspended initially, and that his IRBs were not denied until February 22, 2023. The applicant further argues that, since he filed his application with the Tribunal on August 24, 2023, he is not statute-barred.

11The June 10, 2021 letter from the respondent to the applicant states that, based on the completed OCF-1, the applicant advised he was retired, not employed/self-employed at the time of the accident, did not work 26 of the prior 52 weeks, and was not in receipt of Employment Insurance Benefits. As a result, the respondent advised the applicant that he did not qualify for IRBs. The IRB section of this letter concludes with an “X” marked in the box titled “Not Eligible”. The letter, at the bottom of this section, also states: “If you are eligible for an IRB, it is important that you notify us if you return to work or receive money from any other source so we can properly calculate your IRB.”

12In my view, this letter constitutes a clear refusal to pay a benefit. Smith provides that the limitation period is triggered by a clear, unequivocal denial in straightforward and clear language directed towards an unsophisticated person, which I find was done here. I acknowledge the applicant’s argument that the June 10, 2021 letter did not deny his IRB claim, but rather his IRBs were suspended. I do not concur, because the denial letter clearly states that it is the respondent’s determination that the applicant does not qualify for IRB and the “Not Eligible” box is clearly checked. In my opinion, there is nothing in this correspondence that would suggest to the applicant that his IRBs were being suspended, as the letter clearly states he is not eligible for IRB. Further, the denial letter includes all of the information that the applicant would need to dispute the determination within the two-year limitation period, namely, that he has two years to dispute the denial.

13The respondent also refers me to two Tribunal decisions where it was held that advising applicants that they are not eligible for a benefit is a valid denial, see: Tagoe v. The Personal Insurance Company, 2022 CanLII 14928 (ON LAT) (“Tagoe”) and Robertson v. Coseco Insurance Company, 2021 CanLII 73549 (ON LAT) (“Robertson”). Though I am not bound by the decisions of my fellow adjudicators, I find these two cases still provide helpful guidance in deciding this issue.

14In Tagoe, the insurer denied the applicant’s IRB claim because he did not qualify for IRB, as he had returned to work. The adjudicator determined that the Explanation of Benefits, dated May 20, 2016, satisfied the basic requirements of Smith, because it clearly indicated that the applicant was not eligible for IRB, provided particulars on why he was not eligible for IRB, and provided—in straightforward language—the dispute process available to the applicant. I find the factual scenario before me is similar to Tagoe, and I concur that the present denial letter met the requirements of Smith, because it clearly advised the applicant that he was not eligible for IRBs based on the OCF-1 and provided the dispute process available to the applicant in straightforward language.

15I am alive to the fact that Tagoe was overturned by the Divisional Court, see: Tagoe v. The Personal Insurance Company, 2023 ONSC 5715, which was later upheld by the Court of Appeal for Ontario in The Personal Insurance Company v. Tagoe, 2024 ONCA 894. However, Tagoe was overturned on the basis that the adjudicator erred in not applying the doctrine of discoverability and in not following the Court of Appeal’s decision of Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882. Significantly, as noted at paragraphs 12 to 14 of the Divisional Court’s decision, the Court found no error of law in the adjudicator’s conclusion that the denial letter was clear and unequivocal, because the respondent used clear language of “you do not qualify for an IRB benefit”. In other words, the Court overturned the adjudicator’s decision because she failed to apply the doctrine of discoverability, not because she determined that it is a valid denial.

16Likewise, in Robertson, the insurer denied the applicant’s claim for non-earner benefits on June 28, 2017, because she was not eligible for non-earner benefits (“NEB”) based on the OCF-1 and a telephone discussion between the applicant and the adjuster. At paragraph 8, the Vice-Chair determined that this denial letter met the principles in Smith, because it clearly stated the insurer’s determination was that the applicant did not meet the criteria for NEBs and the “Not Eligible” box was clearly checked. Although I am not bound by previous Tribunal decisions, I am persuaded by the reasoning in Robertson and find that the factual matrix before me is similar.

17In short, I am persuaded by the Tribunal’s reasoning in Tagoe and Robertson, and concur that the denial letter of June 10, 2021 at issue here followed the principles in Smith, because it clearly advised the applicant that he did not qualify for IRB based on the submitted OCF-1, and therefore was not eligible for IRBs.

18I further acknowledge the applicant’s position that his IRB claim was not denied on June 10, 2021 because a determination with respect to entitlement/eligibility was not yet made. The applicant appears to be relying upon an email from the respondent, dated June 22, 2023, to support this position. Upon review of the applicant’s evidence, it appears that, on February 4, 2023, the applicant submitted a Disability Certificate (“OCF-3”) which indicated that he worked in renovation at the time of the accident. I also find the fact that the respondent sent an email to the applicant’s representative on June 22, 2023, stating that it was awaiting the s. 44 assessments to determine the applicant’s eligibility and initial entitlement to IRBs, does not negate from my finding that a proper denial was provided on June 10, 2021. I note that the applicant has not referred me to any case law where it was held that, because the insurer asked for additional information or scheduled a s. 44 assessment, the limitation period did not start to run. Therefore, the June 22, 2023 email did not re-start the limitation period.

19Also, the email from June 22, 2023, does not support the applicant’s position that entitlement/eligibility was not yet made by the respondent. Rather, the email states that the respondent would be proceeding with an insurer’s examination to explore/understand the applicant’s impairments as they related to his eligibility to receive an IRB. In my view, the June 10, 2021 letter clearly advised the applicant that he was not eligible for IRBs, because his OCF-1 indicated he was retired. The fact that the applicant subsequently had an OCF-3 completed (nearly 20 months after the denial) to support he worked in renovation prior to the accident, does not mean the limitation period was re-started, especially where he has not referred me to evidence that he advised the respondent of his pre-accident employment prior to providing the OCF-3 on February 4, 2023.

20In short, the respondent’s denial was proper, and, as such, I find the applicant did not bring his application within the two-year limitation period stipulated in s. 56. The applicant is barred from proceeding with his IRB claim.

21The applicant did not request an extension of the limitation period, as set out in s. 7 of the Licence Appeal Tribunal Act, 1999, SO 1999, c 12, Sch G. Therefore, I decline to exercise my discretion to extend the limitation period under this provision.

Minor Injury Guideline

22Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”

23An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury 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.

24In all cases, the burden of proof lies with the applicant on a balance of probabilities.

25The applicant submits that he should be removed from the MIG for the following five grounds:

i. The applicant summarized a number of medical records (the particulars of which will be outlined below), where a number of pre-existing conditions were documented. I infer from these submissions that the applicant is seeking removal from the MIG on the basis of pre-existing conditions under s. 18(2) of the Schedule;

ii. He has chronic pain;

iii. He has neurological issues;

iv. He has catastrophic psychological injuries; and

v. He should be removed from the MIG by virtue of s. 38(11) of the Schedule.

26The respondent argues that the applicant’s accident-related injuries, if any, were soft tissue in nature, and that there is no evidence that he has sustained injuries that fall outside of the MIG, or that would prevent recovery within the MIG.

The applicant does not have a pre-existing condition that will prevent maximal recovery within the MIG

27I find that the applicant has not established that he should be removed from the MIG on the basis of his pre-existing conditions.

28In his submissions, the applicant summarized the CNR of Dr. Abhishekh Raut, physician from Appletree Medical Group, dated December 19, 2020; an x-ray of the cervical, thoracic, and lumbar spine, dated December 22, 2020; CNR of Dr. Taylor Lougheed, emergency physician at North Bay Regional Health Centre, dated February 10, 2021; and CNRs of North Bay Regional Health Centre following a surgery for a fractured left hip on January 4, 2021.

29The presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce evidence to demonstrate not only that the pre-existing condition exists, but also that it prevents him from achieving maximal recovery of a minor injury within the MIG.

30Section 18(2) requires compelling evidence of a pre-existing condition documented before the accident, which the applicant has presented (with the exception of the fractured left hip, which I will discuss later), as the CNR of Dr. Raut, dated December 19, 2020, and the x-ray of December 22, 2020, which reveal that the applicant was involved in a previous slip and fall where he injured his left leg, entire back, neck, left ankle, and was diagnosed with multiple degenerative changes and chronic spondylolisthesis of L4 on L5. The CNR of Dr. Lougheed also notes that the applicant was involved in a slip and fall in May of 2020, where he sustained multiple strain injuries. However, the last part of s. 18(2) is where I find the applicant has not met his onus. There is no compelling evidence from any medical practitioner that these pre-existing conditions will prevent him from achieving maximal recovery from a minor injury if he is limited to the $3,500.00 monetary limit of the MIG.

31With respect to the CNRs from North Bay Regional Health Centre pertaining to the surgery of a fractured left hip, I find that these records pertain to another individual, not the applicant. As pointed out by the respondent, both the date of birth and address are different than the applicant’s information. The applicant did not provide any reply submissions to address the respondent’s argument that the records are for a different individual. Thus, I find that these records pertain to a different individual, and therefore are irrelevant for the applicant’s matter.

32As a result, I find that the applicant has not shown, on a balance of probabilities, that he has a pre-existing condition, in accordance with s. 18(2), that merits removal from the MIG.

The applicant has not established chronic pain warranting removal from the MIG

33I find that the applicant has not met his burden to prove that he has chronic pain with a functional impairment that would warrant removal from the MIG.

34The applicant relies upon the OCF-3, dated February 4, 2023 and completed by Dr. Tobias Chung, chiropractor, the CNRs of Martel and Mitchell Physiotherapy, and the s. 44 assessment report of Dr. Mohammed Abdul Wahab Khan, physiatrist, dated July 11, 2023, to support his position that he has chronic pain, which he claims has had a substantial and enduring impact on his life.

35The applicant’s claim of chronic pain lacks sufficient support. I place little weight on the diagnoses of lumbago with sciatica, chronic/recurrent lower back pain, chronic/recurrent neck pain, suspected lumbar disc irritation, chronic/recurrent headaches, internal derangement of the knee, and complicated open wound in the knee contained in the OCF-3. This is because the applicant did not report any accident-related complaints to any other practitioner, be it OHIP practitioners, at Appletree Medical Group, or elsewhere. Further, the applicant has not referred me to any corroborating medical evidence where he was diagnosed with chronic/recurrent pain, derangement/complicated open wound in his knee, lumbar disc irritation, and sciatica as a result of this accident. Indeed, the only post-accident records from Martel and Mitchell Physiotherapy indicate that the applicant complained of neck pain, shoulder blade pain, back pain, left leg pain, left knee pain, left ankle pain, and he was diagnosed with strain/sprain type injuries, which are classified within the MIG.

36I also acknowledge that the applicant reported numbness in his left foot. However, he has not referred me to any corroborating medical evidence that he sustained this condition as a result of the accident.

37Likewise, the CNRs of Martel and Mitchell Physiotherapy do not support the applicant’s position that he has developed chronic pain that would warrant removal from the MIG. Specifically, I note he attended this clinic a total of three times (the last time being on June 1, 2021), he was diagnosed with sprain/strain injuries, and he did not report any restrictions to his daily activities.

38I further acknowledge that the applicant reported to Dr. Khan on July 11, 2023, that he struggled with getting in/out of the shower, cutting his toenails, had not returned to the vast majority of his housekeeping tasks, was doing poorly with cooking and grocery shopping, had not returned to riding his motorcycle, and he had not returned to work. However I place little weight on this self-reporting where the applicant did not report functional limitations to the OHIP practitioners at Appletree Medical Group or his treating clinic, Martel and Mitchell Physiotherapy. Moreover, Dr. Khan diagnosed the applicant with cervical spine sprain/strain, lumbar spine sprain/strain and bilateral knee contusion.

39While a formal diagnosis of chronic pain is not mandatory in order to be removed from the MIG, I find that the applicant’s evidence of chronic pain is lacking. My finding is supported by the dearth of medical evidence, the lack of accident-related complaints to any OHIP practitioners, and the accident-related records I have been pointed to indicate that the applicant sustained sprain/strain type injuries.

The applicant has not established that he has neurological issues that warrant removal from the MIG

40I find there is minimal evidence to support the applicant’s claim that he has neurological issues from this accident which warrant removal from the MIG.

41The applicant relies solely on the OCF-3, where he was diagnosed with neck pain with neurological signs. I place no weight on this diagnosis in the OCF-3, because the applicant has not produced any corroborating medical evidence that supports such a diagnosis. Thus, the applicant is not removed from the MIG on this basis.

The applicant has not established that he should be removed from the MIG on the basis of a psychological impairment

42I find that the applicant has fallen short of meeting his onus to establish that he has psychological impairments to warrant removal from the MIG.

43First, I place no weight on the diagnoses of severe stress and adjustment disorder contained in the OCF-3, because Dr. Chung is a chiropractor and diagnosing psychological conditions is outside of his scope of practice. Second, the applicant has not reported any psychological symptoms to any of his treating practitioners following the accident. Third, Dr. Anil Joseph, psychiatrist on June 22, 2023, concluded that the applicant was not very forthcoming with his history, and that the applicant’s diagnoses were unrelated to the accident. On the limited medical evidence available, I see no reason to disagree with this opinion.

Section 38(11) of the Schedule

44The applicant argues that his injuries should not fall within the MIG as the respondent was non-compliant with s. 38(8) of the Schedule. As such, he submits that the Tribunal must apply the consequences of s. 38(11), which includes removing him from the MIG.

45Sections 38(8) and (11) set out strict notice requirements for insurers responding to treatment plans, as well as specific consequences if they fail to comply. Section 38(8) requires an insurer, within ten business days, to inform an insured person of the medical reasons and all of the other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan. Pursuant to s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives a notice that complies with s. 38(8) of the Schedule.

46Regardless of whether the respondent’s denial letters were compliant or not, the jurisprudence is clear that s. 38(11) does not impose a permanent prohibition on an insurer with regard to its reliance on the MIG. While the parties did not refer me to this decision, I am bound by the Divisional Court’s guidance in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (“Zheng”).

47In Zheng, the Divisional Court held that s. 38 refers to the specific treatment plan in question, and s. 38(11) does not impose a permanent prohibition on an insurer with regard to the MIG. An improper denial, therefore, does not result in the applicant being removed from the MIG entirely. I accordingly do not accept the applicant’s argument. I will, however, address the issue of s. 38(8) with respect to the individual OCF-18s below.

48As I have found the applicant to remain within the MIG, I find that it is not required to review the OCF-18s in dispute to determine if they are reasonable and necessary.

49However, the applicant also submits that the respondent’s denials contravened s. 38(8) of the Schedule. I will now address whether the OCF-18s in dispute are payable by virtue of s. 38(11).

The respondent’s denial letter was compliant with s. 38(8) of the Schedule

50I find that the respondent’s denial letter, dated February 22, 2023, was compliant with s. 38(8), and, therefore, the consequences under s. 38(11) are not triggered with respect to the three OCF-18s in dispute.

51The applicant argues that this denial letter does not include any meaningful discussion about his injuries or symptoms, or their bearing on the proposed assessments. The respondent argues that its denial letter was compliant with s. 38(8), because it provided specific and detailed reasons for each of the denied OCF-18s, referenced the medical documents received to date, and identified that the denials were based on the MIG (along with the lack of evidence to support removal from the MIG).

52I find that the February 22, 2023 denial letter satisfied the requirements of s. 38(8), as it provided a principled rationale based fairly on the applicant’s file. Indeed, the respondent clearly advised that the psychological assessment was not reasonable and necessary, because there was no mention of any psychological complaints in the medical evidence provided to date, such as the CNRs of North Bay Regional Health Centre. Further, the respondent advised the applicant that the attendant care assessment and chronic pain assessment were not reasonable and necessary based on the CNRs of North Bay Regional Health Centre, and that there was no compelling medical evidence to substantiate the applicant’s injuries. The respondent also asked the applicant to provide further medical evidence which was identified in its denial letter.

53Thus, the respondent identified information about the applicant’s condition that it did not have, but requires, and it identified the medical information it reviewed when arriving at its conclusion. I find that the reasons cited by the respondent were clear and sufficient to allow an unsophisticated person to make an informed decision as to whether to dispute the decision.

54In conclusion, the applicant has not established that the respondent’s denial letter was non-compliant with s. 38(8), and, therefore, the consequences under s. 38(11) are not triggered.

The respondent is not liable to pay an award

55The applicant sought an award under section 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.

56Having concluded that the applicant is not entitled to any benefits, it follows that no benefits were unreasonably withheld or delayed, and, thus, no award is payable.

ORDER

57For the reasons outlined above, I find that:

i. The applicant is statute barred from proceeding with his claim for IRBs for the period outlined in his application to the Tribunal, pursuant to s. 56 of the Schedule.

ii. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

iii. He is not entitled to the OCF-18s in dispute.

iv. The respondent is not liable to pay an award.

v. The application is dismissed.