Speid v. Definity Insurance Company, 2026 CanLII 26851

Citation: Speid v. Definity Insurance Company, 2026 CanLII 26851

Licence Appeal Tribunal File Number: 24-008655/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:

Timar Speid

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR:

John Mazzilli

APPEARANCES:

For the Applicant:

Ahmad Khan, Counsel

For the Respondent:

Camilla Oblak, Counsel

HEARD:

By way of written submission

OVERVIEW

1Timar Speid, (“the applicant”), was involved in an automobile accident on January 24, 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 Definity Insurance Company (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

1 Is the applicant barred from proceeding to a hearing for the following benefits: issues 2 and 3.ii., below, because the applicant failed to dispute their denial within the 2-year limitation period?

SUBSTANTIVE ISSUES

2The substantive issues in dispute are:

1. 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 limit?

2. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from January 31, 2022, to July 29, 2022, denied May 12, 2022?

3. Is the applicant entitled to physiotherapy services proposed by True Life Wellness and Physiotherapy, as follows:

i. $995.76 in a treatment plan/OCF-18 (“treatment plan”) submitted February 25, 2023, and

ii. $231.26 ($830.26 less $599.00 approved) in a treatment plan submitted May 16, 2022, and partially denied July 4, 2022?

4. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by True Life Wellness and Physiotherapy in a treatment plan submitted June 30, 2022, and denied September 8, 2022?

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

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

RESULT

3The applicant is barred from proceeding to a hearing for issues 2 and 3.ii., above, because the applicant failed to dispute the denial within the 2-year limitation period in accordance with s.56.

4The applicant remains in the confines of the MIG, therefore an analysis of the reasonableness and necessity of the treatment and assessment plans is not necessary.

5The respondent’s denial letters are in accordance with s.38(8) of the Schedule.

6The respondent’s notices are in accordance with s.44(5) of the Schedule.

7As no benefits are owing, interest is not owing.

8The applicant is not entitled to an award.

9The application is dismissed.

PROCEDURAL ISSUES

The applicant’s late filed submissions

10The respondent argues that the applicant failed to provide his hearing submissions to the respondent in accordance with the Case Conference Report and Order dated December 9, 2024. It argues that the applicant’s hearing submissions were due by July 16, 2025; however, they were served to the respondent on July 22, 2025. The respondent argues that it falls in my discretion to allow or disallow the late submissions as evidence in accordance with LAT Rule 9.3

11The applicant did not provide any reply to submissions.

12Indeed, the applicant’s submissions were served to the Tribunal and the respondent on July 22, 2025, which is approximately one week past the due date; however, I find the prejudice to the respondent to be minimal because it was able to provide the Tribunal its submissions that address the applicant’s submissions and evidence. Accordingly, I find that the applicant can rely on his late filed submissions and document brief at the hearing, except for the documents listed below.

Disclosure of the clinical notes and records (“CNRs”) of Dr. Shasha

13The respondent submits that the applicant included new records in his submissions and document brief that had not been disclosed to the respondent, namely the CNRs of the applicant’s family physician Dr. Shasha from October 10, 2023, to March 29, 2025. The respondent argues that these records ought to have been disclosed to the respondent by February 7, 2025, in accordance with the CCRO production disclosure deadline.

14It argues that it would be highly prejudicial if the records were allowed into evidence, as it has not had an opportunity to review these documents. It argues that any submissions made or flowing from theses documents should also be struck from the evidentiary record.

15The applicant did not provide the Tribunal with any reply to submissions.

16I have considered Licence Appeal Tribunal Rule 9.3, and the respondent’s ability to respond to the case fully and fairly against it that was impacted by the late production, and I find that the applicant cannot rely on the CNRs of Dr. Shasha from October 10, 2023, to March 29, 2025.

17The applicant did not provide a reason for his noncompliance of the disclosure deadline set out in the CCRO and failed to explain why approximately one and a half years of CNRs from Dr. Shasha were not disclosed to the respondent prior to the hearing, which in my view hindered the respondent’s ability to continually adjust the applicant’s accident benefits file. I find that allowing this late disclosed evidence would be highly prejudicial to the respondent and in my view would amount to trial by ambush.

18For the reasons above I find that the applicant cannot rely on the CNRs of Dr. Shasha from October 10, 2023, to March 29, 2025, at the hearing and I have not considered these documents in my analysis.

ANALYSIS

Preliminary Issues: Section 7 & 56

19I find that the applicant is barred from proceeding to a hearing for claiming entitlement to the disputed benefits because he failed to dispute the respondent’s denial for issues 2 and 3.ii., above within 2 years. In addition, I choose not to invoke section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”) and extend the applicant’s deadline to file an application.

20Pursuant to section 56 of the Schedule, the applicant has two years from the date of the denial to apply to the Tribunal to dispute the respondent’s decision. The limitation clock begins once the applicant receives proper notice of the denial. The notice must clearly and unequivocally deny the benefit, provide the medical and any other reasons for the decision, and must include information on the applicant’s right to dispute the decision.

21It is well established that, to determine whether a denial is proper, it must be in accordance with the principles outlined in Smith v Cooperators General Insurance Company, 2002 SCC 30. The Court of Appeal in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 confirmed that the limitation period is triggered once proper notice of denial is provided regardless of the correctness of the insurer’s reasons for denial.

22If the respondent’s denial satisfies these requirements and the applicant fails to dispute the respondent’s denial within two years, then the onus is on the applicant to establish reasonable grounds for an extension under Section 7 of the LAT Act. Section 7 allows the Tribunal to extend a limitation period for filing an appeal. In considering whether to exercise its discretion to extend the limitation period, the Tribunal must consider the following four factors set out in Manuel v. Registrar, 2012 ONSC 1492 (”Manuel”) to determine if the justice of the case requires the extension.

23To determine if the justice of the case requires the extension, the factors to consider when determining whether to extend the limitation period are the length of delay, a bona fide intention to appeal within the appeal period, the prejudice to the other side, and the merits of the appeal.

Issue 2-IRB denied May 12, 2022

24The applicant did not provide the Tribunal with any submissions to support the extension of the limitation period, nor did he provide any submissions to support his substantive entitlement to the IRB itself. It follows that the applicant has not met his onus to establish reasonable grounds for an extension under s.7 of the LAT Act.

25The respondent argues that it denied the applicant an IRB on May 12, 2022, based on its insurer’s examinations. It argues that the applicant has failed to produce evidence regarding IRB entitlement and as such he has not met his burden to prove entitlement.

26I find on a balance of probabilities that the respondent’s denial letter of May 12, 2022, serves as clear and unequivocal notice for its denial of the IRB, and given that this application was filed on July 12, 2024, approximately two years and two months following the respondent’s denial the applicant is noncompliant with s.56. I further find that the applicant has not met his onus to establish reasonable grounds for an extension under s.7 of the LAT Act.

Issue 3 ii.- physiotherapy denied July 4th, 2022

27I find on a balance of probabilities that the applicant is barred from proceeding to a hearing on issue 3.ii., above because he failed to dispute the respondent’s denials within the 2-year period in accordance with s.56.

28The applicant submits that the issue was denied primarily based on MIG limits, which it submits does not apply as he believes he ought to be removed from the MIG. He submits that this issue was not fully responded to until after a neurology IE in October of 2023, and as such is within the two-year limitation period.

29The respondent argues that it served its denial letter for the corresponding treatment plan on July 4, 2022, and that the neurology IE of October 2023 does not address issue 3 ii, but rather the neurological IE it relies on relates to issue 3 i.

30After review of the respondent’s denial letters I accept the respondent’s argument that its neurological IE of October 2023 does not apply to the treatment plan in dispute and I accept that the respondent’s reasons for the partial approval and partial denial letter of July 4, 2022, because its denials provided clear and proper reasons for the issue that is in dispute.

31Accordingly, I find on a balance of probabilities that the applicant is barred from proceeding to a hearing on issue 3.ii., above because he failed to dispute the respondent’s denials within the 2-year period in accordance with s.56. I further find that the applicant has not met his onus to establish reasonable grounds for an extension under s.7 of the LAT Act.

Analysis

Minor Injury Guideline-Chronic Pain

32I find on a balance of probabilities that the applicant has not demonstrated that he suffers from chronic pain with a functional impairment that warrants removal from the MIG.

33Section 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.”

34An 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 a functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

35The applicant submits that based on the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition (“the Guides”) he meets the criteria for chronic pain. He submits that following the accident he has consistently attended appointments with his family physician which note persistent, on and off left shoulder pain and neck pain lasting longer than three years, that is aggravated by activities like sleeping on his left side, driving and playing with his son. The applicant relies on the CNRs of his family physician, Dr. Shasha and an X-ray of the applicant’s cervical spine dated December 2, 2022, by Ontario Diagnostic Centre.

36Under the AMA Guides, 3 or more of the following characteristics must be met for a diagnosis of chronic pain.

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

b) Excessive dependence on healthcare provider, spouse, or family.

c) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

d) Withdraw from social milieu, including work, recreation, or other social contacts.

e) 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.

f) Development of psychosocial sequalae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

37The respondent argues that applicant sustained soft tissue injuries as a result of the accident and that the applicant has failed in his onus to prove that these injuries result in chronic pain with a functional impairment, nor do his injuries establish chronic pain under the AMA Guides. The respondent relies on the report of Dr. Mian, physician dated July 25, 2023, the report of Dr. Nikneshan, neurologist, dated September 27, 2023, and the report of Dr. Mandel, psychologist dated October 19, 2022.

38The applicant has failed to demonstrate that he should be removed from the MIG because the contemporaneous medical evidence does not suggest that the applicant suffers from chronic pain with a functional impairment that warrants removal from the MIG. In addition, the applicant has failed to demonstrate that he suffers from chronic pain under the AMA Guides 6th edition.

39While the applicant relies on the CNRs of his family physician for a diagnosis of chronic pain, the CNRs of Dr. Shasha do not reveal a diagnosis of chronic pain. The CNRs of Dr. Shasha do not reference the applicant’s subjective report of chronic pain nor do they suggest any objective findings of chronic pain. The CNRs do point to the applicant’s pain being aggravated by sleeping on his left shoulder, however the X-ray dated December 2022 does not point to any accident-related injuries but rather the X-ray informs that the applicant suffers from age related multilevel degenerative disc disease. For these reasons, I prefer the multidisciplinary approach undertaken by the respondent.

40For example, the contemporaneous evidence of Dr. Mandel, Dr. Mian and Dr. Nikneshan shows that the applicant returned to work within a week of the accident, he continues to drive, handles his own self care independently, and he is completely independent with his activities of daily living. I was not pointed to evidence by the applicant that his accident-related injuries resulted in chronic pain with a functional impairment that warrant funding beyond the MIG limits, nor was I pointed to evidence that he satisfies three or more areas above to meet a diagnosis of chronic pain in accordance with the Guides.

41I find on a balance of probabilities that the applicant has not demonstrated that he suffers from chronic pain with a functional impairment that warrants removal from the MIG.

Section.38(8) and notice provisions under s.44(5)

42Section 38 of the Schedule provides a provision for claims of medical and rehabilitation benefits and for approval of assessments. Section 38(8) reads that within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

43Section 38(11) is operative if the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan. Section 38(11) states that the insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies. Further, the insurer shall pay for all 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 a notice described in subsection (8).

44Section 44 states that for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

Issue 3- $995.76 for physiotherapy treatment

45The applicant submits that the insurer’s denial and insurer examination (“IE”) notices are not reasonable and necessary under s.38 and s.44 of the Schedule and thus cannot be relied upon. It argues that the respondent’s secondary IE in September 2023 was not reasonable and necessary so the denials stemming from them are void.

46The respondent argues that the applicant has failed to articulate the proper test and that all its denials are in accordance with s.38(8) and s.44 of the Schedule.

47This dispute arises because Dr. Mian (“assessor number one”) partially deferred his opinion to an appropriate medical specialist because the applicant complained of ongoing radicular symptoms. The respondent properly scheduled an IE based on Dr. Mian’s inability to address the applicant’s radicular symptomology. In my view this request was made in good faith to address the applicant’s reported symptomology, therefore I do not find that this request was made more often than is reasonably necessary or repetitive in accordance with s.44(5) as Dr. Mian is not qualified to provide a neurological diagnosis, whereas Dr. Nikneshan (“assessor number two”) is qualified to provide such diagnosis.

48On April 27, 2023, the respondent denied the disputed OCF-18 based on the applicant’s injuries being soft tissue injuries, it acknowledges the X-ray of December 5, 2022, and indicates that based on the findings of the x-ray the applicant suffers from multilevel degenerative disc disease, however it informs that it is unclear if this diagnosis is directly related to the accident. This letter further notifies the applicant that he will be required to attend an IE. On May 1, 2023, the respondent advised the applicant by way of letter that it had scheduled an IE on May 16, 2023, with Dr. Mian to determine if the treatment plan above is reasonable and necessary and again communicated the information as outlined above for its reasons.

49On July 26, 2023, by way of letter the respondent advised the applicant that based on Dr. Mian’s assessment, Dr. Mian concluded that the applicant’s soft tissue/myofascial injuries sustained from a physical perspective, could not be correlated objectively nor related to the motor vehicle accident. The letter further informs the applicant that Dr. Mian deferred any definitive opinion related to the applicant’s ongoing radicular symptoms and the MRI findings to an appropriate specialist. The respondent attached Dr. Mian’s report to this letter and maintained its position that the MIG applied based on Dr. Mian’s opinion in accordance with s.38(8).

50Subsequently, the respondent arranged for a neurological examination with Dr. Nikneshan and on October 4, 2023, by way of letter the respondent advised the applicant that based on Dr. Nikneshan’s assessment and report that his neurologic examination is normal with no lateralizing features to indicate a significant trauma-related myelopathy, radiculopathy, or neuropathy and Dr. Nikneshan concludes, as did Dr. Mian, that the applicant’s injuries fall with the minor injury guideline.

51The applicant’s argument that the secondary IE of Dr. Nikneshan was completed approximately 6 months after the applicant’s request for treatment, therefore possibly delaying needed treatment, is valid, I find that the process of adjusting accident benefits file is ongoing and based on medical information/diagnosis that takes time to obtain. The respondent undertook a second IE based on the applicant’s complaints to Dr. Mian, however the denial of Dr. Main stands as the respondent’s basis for its denial of the disputed treatment plan and its position on the MIG in accordance with s.38(8). As noted above, the applicant did not provide contemporaneous corroborating medical evidence to support his claim otherwise, therefore I find that the second IE of Dr. Nikneshan was a reasonable and good faith assessment attended by the applicant given his ongoing radicular symptomology reported to Dr. Mian.

52I was not pointed to evidence of when the disputed plan was submitted to the respondent, therefore I cannot comment on the respondent’s compliance with the 10-business day requirement under s.38(8) and I note that the applicant did not argue that the notices were not received within 10-days business days of his request for treatment.

53I find that the respondent’s denials are clear and contain medical and other reasons that are easily understood. I further find that including the entire examination reports with some of its reasons listed in the above paragraphs in the denial letter is more than sufficient medical reason for the denial in accordance with s.38(8) of the Schedule because the denial contains sufficient medical and other reasons informed by s.44 examination reports.

54For the reasons above, I find on a balance of probabilities that the respondent’s denial letters for the disputed physiotherapy treatment plan are in accordance with s.38(8) and its s.44 assessments were not requested more often than is reasonably necessary nor unnecessarily repetitive in accordance with s.44(5) of the Schedule.

Issue 4- $2,200.00 for a psychological assessment

55The applicant argues that the respondent’s denial notice for the disputed assessment does not comply with s.38(8) of the Schedule and therefore it is payable under s.38(11).

56The respondent argues that its denials were timely and provided medical and other reasoning as required in accordance with s.38(8).

57The disputed assessment is dated June 30, 2022; however, I was not provided a date as to when the applicant submitted the request for assessment to the respondent, therefore I am unable to determine if the respondent is in breach of the 10-business day requirement under s.38(8). The only submission on the date the assessment request was submitted to the respondent comes from the respondent’s submissions which it submits is August 31, 2022, as the day it received the plan, however I was not pointed to evidence to support its submission.

58In its denial letter dated September 8, 2022, the respondent advised the applicant by way of letter that it has not received any records to support the assessment as being reasonable and necessary, and that the psychological pre screen report from TRU Life Wellness states that “you find yourself distracted.” The letter further advises that due to the insufficient medical documentation to support that the applicant’s injuries fall outside of the MIG, the OCF-18 is not reasonable or necessary. The letter further informs the applicant that he will be required to undergo an IE under s.44.

59Following the psychological assessment conducted by Dr. Mandel, on November 14, 2022, the respondent denied the assessment plan based on Dr. Mandel’s report which concluded that, “Mr. Speid is reporting residual adjustment difficulties associated with his accident, which he continues to cope with at this time. Based upon the clinical interview and psychological testing there is a lack of consistent objective information provided to indicate that services are required beyond what is available within the MIG from a psychological perspective.”

60I find that the respondent’s denials are clear, concise and contain medical and other reasons that are easily understood. I further find that including the entire examination reports with some of its reasons listed in the above paragraphs in the denial letter is more than sufficient medical reasons for the denial in accordance with s.38(8) of the Schedule because the denials contain sufficient medical and other reasons, that come informed by s.44 examinations which the applicant attended.

61For the reasons above, I find on a balance of probabilities that the respondent’s denial letters for the disputed psychological assessment are in accordance with s.38(8).

Interest

62Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.

Award

63The 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.

64The applicant failed to provide the particulars of his award claim within 30 days after receipt of the log notes in accordance with the CCRO. In addition, the respondent did not withhold or delay any benefits from the applicant, so it follows that the respondent is not liable to pay an award to the applicant.

65I find that the applicant is not entitled to an award.

ORDER

66It is ordered that:

i. The applicant is barred from proceeding to a hearing for issues 2 and 3. ii. in accordance with s.56.

ii. The applicant remains in the confines of the MIG, therefore an analysis of the reasonableness and necessity of the treatment and assessment plans is not necessary.

iii. The respondent’s denial letters are in accordance with s.38(8) of the Schedule.

iv. The respondent’s notices are in accordance with s.44(5) of the Schedule.

v. As no benefits are owing, interest is not owing.

vi. The applicant is not entitled to an award.

vii. The application is dismissed.