Citation: Zaheer v. Zenith Insurance Company, 2025 ONLAT 23-001713/AABS

Licence Appeal Tribunal File Number: 23-001713/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:

Nelab Zaheer

Applicant

and

Zenith Insurance Company

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Laurie Tucker, Counsel

For the Respondent: Amanda Lennox, Counsel

HEARD: By way of written submissions

OVERVIEW

1Nelab Zaheer, the applicant, was involved in an automobile accident on March 15, 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, Zenith Insurance Company, 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 precluded from proceeding with the application to the Tribunal pursuant to s. 9.1 of Reg. 664 of the Insurance Act?

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 $1,472.50 for an in-home functional assessment, proposed by Modern OT in a treatment plan submitted November 11, 2022?

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

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

RESULT

Preliminary Issue

4The applicant complied with s. 9.1 of Reg. 664 of the Insurance Act, and she is therefore permitted to proceed with her application to the Tribunal.

Substantive Issues

5The applicant has demonstrated that removal from the MIG is warranted as she sustained a psychological impairment as a result of the accident.

6The applicant is not entitled to the treatment plan for an in-home functional assessment.

7The respondent is not liable to pay an award.

8The applicant is not entitled to interest as no benefits are overdue.

PROCEDURAL ISSUE

9The respondent requests that I exclude from evidence the chronic pain assessment report of Dr. Kevin Smith, dated November 24, 2023. It submits that the report was produced approximately one month after the production deadline set out in the Case Conference Report and Order of September 21, 2023 (“CCRO”).

10Despite the respondent’s submission, it has not provided any evidence of the date the report was provided, so I do not know the extent of the breach of the production order. Further, the respondent did not explain whether it was prejudiced by the late delivery of the report, and it was able to substantively address the report in its submissions. In the absence of an explanation from the respondent, I find that the applicant would suffer greater prejudice if the report was excluded from this hearing, as the evidentiary onus rests with her to demonstrate entitlement to the issues in dispute. I accordingly decline the respondent’s request to exclude the report from the hearing.

ANALYSIS

Preliminary Issue

11I find that the applicant rescinded her settlement within two days in accordance with s. 9.1(4), and she is therefore permitted to proceed with her application to the Tribunal.

12The parties negotiated a settlement in September and October 2022. On Thursday, October 13, 2022, at 7:54 p.m., the applicant provided an executed release and Settlement Disclosure Notice (“SDN”) to a claims adjuster of the respondent via email.

13On Monday, October 17, 2022, at 4:46 p.m., the applicant sent an email stating: “I don’t know if you have processed the closure, but I would like to withdraw it”. The email was addressed to the claims adjuster, however it was sent to the email address of a law clerk at her counsel’s office.

14On Monday, October 17, 2022, at 5:18 p.m., the law clerk wrote to the claims adjuster advising that their office had been retained, and that the settlement offer was rescinded. The settlement cheque was returned to the respondent by way of letter dated October 21, 2022.

15Section 9.1(4) of Reg. 664 states that an insured person may rescind a settlement within two business days after the later of the day the insured person signs the disclosure notice and the day the insured person signs the release. Reg. 664 and the Insurance Act are silent with respect to how days are counted.

16Both parties agree that the settlement documents were deemed received on Friday, October 14, 2022, and that the email rescinding the settlement was deemed received on Tuesday, October 18, 2022, as they were provided after 5:00 p.m. However, the respondent submits that October 14 is included in the two-day “cooling off” period, in which case October 17 was the final date by which the applicant could have rescinded the settlement. The respondent submits that the applicant failed to rescind the settlement within two business days and is therefore barred from proceeding with her Tribunal application as she entered into a valid settlement agreement. The applicant submits that the two-day “cooling off” period began after October 14, and thus October 18 was the final date to rescind it, which is what she did.

17Both parties rely on s. 64(20) of the Schedule, which states that a document delivered by electronic means after 5 p.m. local time of the recipient shall be deemed to be delivered on the next business day. However, that provision applies to the Schedule itself and not to any other Regulations under the Insurance Act.

18The Legislation Act, 2006 S. O. 2006, c. 21, Sched. F, stipulates under s. 46 and 47 that every provision under Part VI applies to every Act and Regulation unless a contrary intention appears or its application would give a term or provision a meaning that is inconsistent with the context.

19Under s. 89(3) of the Legislation Act, which falls under Part VI, a reference to a number of days between two events excludes the day on which the first event happens and includes the day on which the second event happens. Section 89(5) also states that a period of time described as beginning before or after a specified day excludes that day.

20Although the Legislation Act does not specify what day documents are deemed delivered if they are provided after 5:00 p.m., that issue is effectively moot because the applicant’s documents and the rescindment were both delivered after 5:00 p.m., and I find that there is no reason to count those days differently.

21I find that the two-day “cooling off” period began the day after October 14, 2022, which in my view aligns with the wording of the Legislation Act. As the applicant emailed the respondent to rescind the settlement on the second day of the two-day “cooling off” period, I find that the rescindment was valid and she is not precluded from proceeding with her application to the Tribunal.

Substantive Issues

Application of the Minor Injury Guideline

22Section 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. 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 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.

24I find that the applicant has proven, on a balance of probabilities, that she sustained a psychological impairment as a result of the accident such that she does not belong in the MIG.

25On March 19, 2021, the applicant visited her family physician, Dr. Shirin Bala Lal, and advised that she was experiencing flashbacks of the accident. On August 22, 2022, the applicant advised Dr. Lal that when she is a passenger in a car travelling on the highway she feels anxious and is worried about getting into a car accident. She indicated that this only began after the accident. During trips to Montreal and the Thousand Islands, she experienced 1.5 hour long panic attacks. Dr. Lal recommended that she participate in cognitive behavioural therapy, and prescribed Propranolol for her feelings of panic. On October 20, 2022, the applicant advised Dr. Lal that she took Propranolol but it did not help, and she continues to feel panic when she is a passenger in a car on the highway or while the car is going fast. She was prescribed Ativan for what Dr. Lal described as “acute anxiety”.

26The respondent acknowledges in its submissions that after the accident the applicant complained of fatigue, low energy, and “potentially anxiety”, although it submits that the applicant was experiencing these issues, as well as irritability, depression, and poor sleep prior to the accident. I disagree. Although the applicant did have a history of depression prior to the accident, there is no indication before me that the applicant was experiencing symptoms of anxiety, and certainly not vehicular anxiety requiring medication, until after the accident.

27The respondent submits that a few months prior to the accident, the applicant visited Dr. Lal and Pro-Physio and complained that she was experiencing flashbacks. In support of its submission, the respondent does not refer me specifically to the records of Dr. Lal or Pro-Physio, but instead refers me to the report of Dr. Kevin Smith, chronic pain physician, dated March 24, 2023. However, nowhere in his report does he suggest that the applicant experienced flashbacks prior to the accident. I have also reviewed the records of Dr. Lal that are before me and there is no indication that she was experiencing flashbacks in the few months prior to the accident; in fact, the only time the applicant mentioned experiencing flashbacks to Dr. Lal was after the accident. I note that neither party has provided me with the records from Pro-Physio.

28I find that, on a balance of probabilities, the applicant sustained a psychological impairment as a result of the accident such that she should be removed from the MIG.

In-Home Functional Assessment

29I find that the applicant is not entitled to the proposed in-home functional assessment.

30To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

31The treatment plan for an in-home functional assessment, dated November 11, 2022, indicates that the applicant had ongoing and consistent pain causing difficulties with work, walking, keeping up with household chores, activities of daily living, and self hygiene. It notes that she had vehicular anxiety, pain and numbness in her neck and back, and migraines. The goals of the treatment plan were a return to activities of normal living and a return to pre-accident work activities.

32I find that there is a lack of contemporaneous evidence to support the need for an in-home functional assessment. I have reviewed the entirety of Dr. Lal’s records and the last time the applicant complained to her of pain that appears to be accident-related was June 21, 2021. The record from that date indicated that the applicant had low back pain for 5 days, but did not want to take time off her job as a dental assistant. There is no mention of an inability to complete tasks at home. Further, although the applicant complained of migraines to Dr. Lal on November 22, 2021, she also experienced migraines before the accident. The subsequent accident-related notes from Dr. Lal refer only to vehicular anxiety. I have not been provided with the clinical notes and records from any other treatment provider. In her submissions, the applicant refers to three entries from Dr. Lal’s records in 2023, however there are no records from 2023 from Dr. Lal before me. There are no records before me from around the time that the treatment plan was submitted that would indicate why an in-home functional assessment was necessary.

33Further, I do not find the report of Dr. Smith persuasive on its own with respect to this treatment plan. Dr. Smith indicated that the applicant ceased working in the summer of 2021 and had not returned, however the treatment plan for the assessment states that she was working with unspecified accommodations. There is no other evidence before me to resolve this discrepancy. Further, Dr. Smith was unable to attribute the applicant’s right shoulder subdeltoid bursitis to the accident due to it being outside his area of expertise, but most of her reported difficulties appear to be related to her right shoulder. I am accordingly left wondering whether these difficulties are accident-related. There is a lack of medical evidence before me to answer these questions or corroborate Dr. Smith’s findings, as I have only been provided with the clinical notes and records of Dr. Lal until October 2022, and from no other treatment providers.

34I find that, on a balance of probabilities, the applicant has not met her burden to prove that the treatment plan for an in-home functional assessment is reasonable and necessary.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, interest is not payable.

Award

36The 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. As no benefits are payable, the respondent is not liable to pay an award.

ORDER

Preliminary Issue

37The applicant complied with s. 9.1 of Reg. 664 of the Insurance Act, and she is therefore permitted to proceed with her application to the Tribunal.

Substantive Issues

38The applicant has demonstrated that removal from the MIG is warranted as she sustained a psychological impairment as a result of the accident.

39The applicant is not entitled to the treatment plan for an in-home functional assessment.

40The respondent is not liable to pay an award.

41The applicant is not entitled to interest as no benefits are overdue.