Zufferey v. Co-operators General Insurance Company, 2026 CanLII 15054

Citation: Zufferey v. Co-operators General Insurance Company, 2026 CanLII 15054

Licence Appeal Tribunal File Number: 24-005134/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:

Francine Zufferey

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR: Neil Levine

APPEARANCES:

For the Applicant: Sevda Guliyeva, Paralegal

For the Respondent: Sonya E. Reid, Counsel

HEARD: By way of written submissions

OVERVIEW

1Francine Zuffery, the applicant, was involved in an automobile accident on February 6, 2022, 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, The 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 a non-earner benefit (“NEB”) of $185.00 per week from March 6, 2022, to February 6, 2024?

iii. Is the applicant entitled to $2,779.25 for a psychological assessment, proposed by Q Medical in a treatment plan/OCF-18 (“plan”) dated August 4, 2022?

iv. Is the applicant entitled to $1,696.25 for chiropractic services, proposed by Promed Physiotherapy in a plan dated January 19, 2023?

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

RESULT

3The applicant has not demonstrated on a balance of probabilities that she should be removed from the MIG

4The applicant is not entitled to a non-earner benefit.

5As the applicant is in the MIG, it is not necessary to consider if the plans in dispute are reasonable and necessary. The applicant is entitled treatment up to the MIG limit.

6The applicant is not entitled to interest.

PROCEDURAL ISSUES

7The respondent submits that evidence associated with paragraph 6 of the applicant’s submissions was late filed and therefore should not be considered by the Tribunal. This information includes clinical notes and records of Dr. Emam Ibrahim.

8The respondent asserts that this evidence was filed late given that the Case Conference Report and Order stated that all submissions should be submitted within 60 days of the case conference held on October 22, 2024. These records were served on June 18, 2025.

9I declined to grant the respondent’s request to exclude the evidence from December 13, 2023, January 18, 2024 and June 4, 2024 from the record. Pursuant to s. 15(1)(b) of the Statutory Powers and Procedure Act, RSO 1990, c. S. 22 (“SPPA”), documents relevant to the issues in dispute are admissible as evidence. Furthermore, Rule 9.3 says that when the Tribunal makes a determination regarding the admission of evidence, the Tribunal may consider the relevance of the evidence. I find that this evidence is relevant, that the applicant would be prejudiced by the exclusion of this evidence, and there is no prejudice nor procedural fairness to the respondent. Finally, given the consumer protection mandate of the Schedule, it is important to ensure that all relevant documents are included in any decision.

ANALYSIS

Minor Injury Guideline

10The applicant has not demonstrated on a balance of probabilities that her injuries have exceeded the definition of a minor injury under the Schedule, nor has she demonstrated that her pre-existing conditions would preclude her maximal recovery if she were kept within the MIG.

11Section (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.”

12An insured may be removed from the MIG if they can establish that their accident-related injuries exceed the definition of a minor injury under the Schedule, 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 the insured person is 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.

Physical

13The applicant was injured in a motor vehicle accident on February 6, 2022. She was knocked to the pavement and diagnosed with right shoulder and elbow pain. A hospital visit to Humber River Hospital showed contusion of the rib cage, mild right flank tenderness, and mild right knee pain.

14Prior to the accident she had hypertension, chronic atrial fibrillation that required daily anticoagulation medication, osteoarthritis in her right knee and chronic headaches in addition to other illnesses that, she submits, would make healing from her accident injuries difficult and preclude recovery under the MIG. The applicant submits that her injuries from the accident persisted until well after the accident, and she has been unable to recover under the Minor Injury Guideline limits.

15The respondent submits that the applicant’s injuries remained minor in nature as defined by the Schedule. The respondent submits that the applicant did not mention any injuries to her family doctor on February 9, 2022, and first mentioned the injuries to her family doctor three weeks later on February 24, 2022. X-rays ordered by her family doctor were unremarkable and showed no acute accident-related injuries, and she reached maximal post-accident recovery.

16The applicant claims knee pain and reduced movement following the accident as grounds for removal from the MIG.

17The applicant visited her family doctor on December 13, 2023, almost two years post-accident, where testing showed osteopenia and probable meniscal tears in her right knee in addition to a Baker’s cyst. The records of this visit do not reference the accident, nor was it shown how these issues were a result of the accident or how they prevented maximal recovery under the MIG. The applicant maintains that she suffered significant musculoskeletal impairment including lumbar spine pain, hip and elbow pain, and lumbar spine range of motion issues. There was no links made or notations by the doctor to show that these issues were related to the accident or were caused by it, nor how they would preclude recovery under the MIG.

18Additional family doctor visits on January 22, 2024 showed hypertension, osteoarthritis, bursitis, an effusion and a Baker’s cyst, but no do not indicate a relation to the subject accident nor how any pre-existing conditions might impede maximal recovery under the MIG. An appointment was made with an orthopedic specialist but the applicant missed this appointment.

19The applicant presented no evidence that linked these physical issues and sequelae to the accident. The applicant also did not show how or which pre-existing impairments were exacerbated by the accident, or that her pre-existing conditions precluded recovery under the MIG, as required by s. 18(2).

20Accordingly, I find on a balance of probabilities that the applicant did not establish that they suffered non-minor physical injuries as a result of the accident, nor did the applicant establish that their pre-existing conditions would preclude maximal recovery.

Psychological

21The applicant was examined virtually on March 13, 2023 by psychologist Dr. Tony Toneatto who produced a s. 25 report. Pain was reported by the applicant along with limited sleep, chronic fatigue, social withdrawal, fear of driving and crossing streets, persistent worry, irritability, and low mood. Testing showed moderate depression, anxiety and somatic preoccupation. This evidence is not in itself persuasive given that there is no other corroborating evidence linking these issues to the subject accident. For example, there are no family doctor records to support or corroborate these claims of mental health issues that resulted from the accident, and the only mention of psychological issues is from the applicant’s chiropractor, Dr. Dan Shlepakov, who requests a psychological assessment.

22In the absence of contemporaneous, corroborating medical evidence, I find on a balance of probabilities that the applicant has not met her burden of showing how she should be removed from the MIG limits based on psychological impairments.

Non-Earner Benefit

23The applicant is not entitled to a NEB.

24Section 12(1) provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Co., 2009 ONCA 391, which focuses on a comparison of the applicant’s pre- and post-accident activities.

25The applicant presented very little evidence about her pre- and post-accident activities. The applicant only noted via submissions that she drove before the accident and no longer drives after the accident, which is one activity. Household chores are also noted as being avoided after the accident but there is little or no corroborating evidence about pre- or post-accident activities. There is also a mention of going to church and going to the store. The applicant submitted that there were no difficulties post-accident with personal care activities. No other corroborating information or evidence on pre- or post-accident activities was provided. There is no evidence about how the applicant suffers from a complete inability to carry on a normal life, and no evidence about how the applicant is prevented from engaging in all of the activities in which the person engaged in before the accident.

26The applicant did not submit an OCF-3, despite being advised of its necessity for an NEB claim. This is set out in the respondent’s submission of letters dated June 13, 2022 and April 4, 2024, and I accept these submissions because they were not disputed by the applicant and no OCF-3 is in evidence. The Schedule states that an applicant that fails to submit a completed disability certificate is not entitled to a specified benefit.

27Furthermore, there is little evidence presented by the applicant that shows what her pre and post-accident were, or how substantially all activities that the applicant engaged in before the accident are prevented or curtailed in any way by her accident-related impairments, as is required to prove entitlement to an NEB. There are no CNRs from the applicant’s family physician, Dr. Ibrahim, that are evidence of any new functional limitations, which is inconsistent with what the applicant is claiming. Accordingly, I find on a balance of probabilities that the applicant has not met the burden of proof to show how she is unable to carry on a normal life.

28The applicant is not entitled to an NEB.

29As I have found the applicant to be in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The applicant is entitled to treatment up to the MIG limits.

Interest

30No treatments or benefits are payable, therefore no interest applies

ORDER

31The applicant:

i. Remains within the Minor Injury Guideline. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The applicant is entitled to treatment up to the MIG limit.

ii. Is not entitled to a non-earner benefit.

iii. Is not entitled to interest