Vallejos v. Co-operators General Insurance Company, 2026 CanLII 45590

Citation: Vallejos v. Co-operators General Insurance Company, 2026 CanLII 45590

Licence Appeal Tribunal File Number: 25-000716/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:

Margie Vallejos

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Bernard Trottier

APPEARANCES:

For the Applicant: Dinesh Shan, Paralegal

For the Respondent: Sonya Reid, Counsel

HEARD: By way of written submissions

OVERVIEW

1Margie Vallejos, the applicant, was involved in an automobile accident on November 20, 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 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 in dispute is whether the applicant is barred from proceeding to a hearing for a treatment plan/OCF-18 (“OCF-18”) for chiropractic services (issue 2 below) because she failed to dispute its denial within the 2-year limitation period.

SUBSTANTIVE ISSUES

3The 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 (“MIG”) limit?
2. Is the applicant entitled to $3,866.90 for chiropractic services, proposed by Dr. Nelantine Jesuthasa in an OCF-18 submitted December 1, 2022?
3. Is the applicant entitled to $1,553.60 for chiropractic services, proposed by Dr. Nelantine Jesuthasa in an OCF-18 submitted January 30, 2025?
4. Is the applicant entitled to assessments proposed by East Rehabilitation Centre, as follows: (a) $2,200.00 for a psychological assessment, in an OCF-18 submitted November 7, 2024? (b) $2,200.00 for a chronic pain assessment, in an OCF-18 submitted October 29, 2024? (c) $2,460.01 for an attendant care needs assessment, in an OCF-18 submitted October 18, 2024?
5. Is the applicant entitled to interest on any overdue payment of benefits?
6. 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

4I find that the applicant is not barred from proceeding to a hearing on the OCF-18 for issue 2 (chiropractic services), because she disputed its denial within two years of the respondent providing a valid denial notice.

5The applicant has not demonstrated that her injuries warrant removal from the MIG.

6The applicant is entitled to payment for the OCF-18 for chiropractic services submitted December 1, 2022, with interest, for services incurred between December 22, 2022 and June 12, 2023.

7Since the applicant’s injuries are considered minor, the other proposed OCF-18s seeking treatment and assessments outside of the MIG are not payable.

8Since no benefits are payable for the other OCF-18s (other than issue 2), no interest is payable for these OCF-18s.

9An award under s. 10 of Reg. 664 is not payable.

ANALYSIS OF THE PRELIMINARY ISSUE

Background and timeline

10The applicant was involved in a motor vehicle accident on November 20, 2022. On December 1, 2022, Dr. Nelantine Jesuthasa, chiropractor, submitted the disputed OCF-18 to the respondent.

11On December 6, 2022, the respondent emailed the applicant, stating that it had not received a completed Application for Accident Benefits/OCF-1 and that, as a result, it could not consider the proposed OCF-18. The applicant submitted an OCF-1 the next day, on December 7, 2022.

12On June 12, 2023, the respondent notified the applicant that the OCF-18 was denied, citing the medical and other reasons for the denied expense.

13On January 20, 2025, the applicant filed an Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act (“the application”) with the respondent and the Tribunal.

The legal test and the onus

14Section 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. To initiate the running of the limitation period, the insurer must provide clear and unequivocal notice of a refusal to pay benefits. In Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 SCR 129 (“Smith”), the Supreme Court of Canada articulated the requirements that an insurer must satisfy for there to be a proper denial of benefits: straightforward and clear language to inform a person of the dispute resolution process; language directed towards an unsophisticated person; identification of the person’s rights to dispute the denial; and the relevant time limits that govern that process.

15If an insurer’s notice of denial to an insured person does not satisfy these requirements, the denial may be determined to be invalid and fail to initiate the two-year limitation period.

16The onus is on the party raising the preliminary issue, in this case the respondent, to demonstrate on a balance of probabilities that the order sought under the preliminary issue should be granted.

The parties’ positions and the result

17The respondent submits that it provided a valid notice of denial on December 6, 2022, when it advised that it had not yet received an OCF-1, and therefore the OCF-18 could not be considered. The respondent argues that an insurer is not required to manufacture medical reasons for a denial letter to be valid. The respondent argues that the December 6, 2022 correspondence initiated the limitation period, and because the applicant filed her application more than two years after that date, the applicant is barred from proceeding to a hearing on issue 2.

18The applicant argues that the substantive denial of the OCF-18 occurred on June 12, 2023, when the respondent relied on the MIG to dispute the proposed chiropractic services. The applicant argues that this was the first clear and unequivocal denial of the OCF-18 on its merits, and that this correspondence represents the operative denial for limitation purposes.

19I find that the December 6, 2022 correspondence from the respondent to the applicant does not provide straightforward and clear language to inform the applicant on the dispute resolution process. I find that it directs the applicant to examine the application package that was provided on December 2, 2022, but that it does not inform the applicant that she has a right to dispute the denial, nor does it mention the two-year limitation period. For these reasons, I find that the December 6, 2022 correspondence was deficient under Smith. I find that the start date of the limitation period was June 12, 2023, and I find that the denial was disputed within the two-year limit. Therefore, I deny the respondent’s request to bar the applicant from proceeding to a hearing on issue 2.

ANALYSIS OF THE SUBSTANTIVE ISSUES

The Minor Injury Guideline

20Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 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.”

21An 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.

22The OCF-18s in dispute all sought treatment outside of the MIG. The respondent submitted that it has approved treatment to the full extent of the $3,500 MIG limit, but that the applicant has not exhausted this funding, with $658.40 remaining.

23The parties dispute whether the applicant suffered psychological impairments and a chronic pain condition, as a result of the accident, that would warrant removal from the MIG, and whether the proposed treatment plans are reasonable and necessary.

The applicant’s psychological impairments do not remove her from the MIG

24The applicant submits that she had no record of pre-accident referrals to mental health professionals or prescriptions for psychotropic medications. The applicant argues that post-accident, she suffered psychological symptoms including intrusive thoughts, flashbacks, hypervigilance, emotional dysregulation, avoidance and sleep disturbance, as diagnosed by Cody Eriksen, psychotherapist, in a psychological assessment report dated December 5, 2024.

25The applicant argues that the respondent has not conducted a psychological insurer’s examination (“IE”) to refute Mr. Eriksen’s findings with any contrary evidence. The applicant argues, further, that the respondent relies solely on the MIG to deny the proposed psychological OCF-18. The applicant argues that her psychological diagnoses are uncontroverted by the respondent, and therefore she is entitled to funding outside of the MIG for the disputed psychological assessment and for further psychological treatment.

26The respondent submits that following the accident, the vehicle’s airbags did not deploy, emergency personnel were not called to the scene, the applicant did not attend hospital, and her husband was able to drive the vehicle to a collision reporting centre. For these reasons, the respondent describes the accident as “minor”. The respondent submits, further, that the clinical notes and records (“CNRs”) of Dr. Thomas Van, the applicant’s family physician, make no mention of the accident (after the initial visit on November 30, 2022) until two years later on November 14, 2024, when she mentioned that her insurer was requesting a psychological assessment.

27The respondent argues that Mr. Eriksen’s report is inconsistent with other evidence, and it should be given little weight. The respondent submits that the report states that the applicant “hit her head on the door” during the accident, and “attended her family doctor the following day due to pain”, even though the medical records do not reference any head impact and the applicant did not see Dr. Van until ten days after the accident.

28The respondent argues that it is not required to arrange an IE, and that the Tribunal is not required to accept expert evidence merely because it is unrebutted, citing Dooman v. TD Insurance, 2025 ONSC 184 (“Dooman”). It argues that the only reference to psychological symptoms, outside of Mr. Eriksen’s report, is the request for a psychological assessment to Dr. Van, on November 14, 2024.

29I find that the medical records of the applicant do not corroborate the proposition that she suffered psychological impairments, as a result of the accident, that require treatment outside of the MIG. I find that the absence of any mention of the accident at all, beyond the initial visit with Dr. Van ten days after the accident and then for nearly two years, persuades me that the applicant’s psychological impairments did not rise to the level of a non-minor injury. I find that the applicant has not presented any other evidence, such as prescription history, an OHIP summary, employment records or the use of collateral benefits, that would corroborate that she suffered the claimed psychological impairments requiring assessment and treatment outside of the MIG.

30The decision in Dooman is instructive in that the Tribunal is “not required to accept all of a medical expert’s evidence merely because there is no contrary expert testimony tendered on behalf of the other party”. I assign little weight to Mr. Eriksen’s report because of the significant discrepancies between the applicant’s medical records and the extent of the injuries reported to Mr. Eriksen.

31In weighing the evidence before me, I find that the applicant has not demonstrated on a balance of probabilities that she suffered psychological sequelae as a result of the accident warranting removal from the MIG.

The applicant’s pain complaints do not remove her from the MIG

32The applicant submits that, in her post-accident visit with Dr. Van, she reported that she suffered from low back pain, right shoulder pain, reduced range of motion and muscle tenderness. The applicant submits, further, that she reported persistent pain in her shoulders and back during post-accident physiotherapy and in her visits with Dr. Van on November 14, 2024, and on May 1, 2025.

33The applicant argues that she requires funding beyond the MIG for follow-up assessments and treatment for her persistent physical pain. She argues that the proposed OCF-18s are reasonable and necessary to address the ongoing complaints of musculoskeletal pain, stiffness and reduced mobility following the accident.

34The respondent argues that the applicant’s physical injuries fall under the definition of a minor injury under s. 3(1) of the Schedule, and that she mentioned the accident to Dr. Van only twice in the 18 months following the accident.

35The respondent submits that the applicant does not suffer from chronic pain syndrome, which is defined as severe and ongoing pain accompanied by functional impairment. The respondent submits, further, that the Tribunal frequently relies on the criteria in the American Medical Association’s Guides, 6th edition (the “AMA Guides”) for evaluating chronic pain claims, and that the applicant’s symptoms do not meet any of the AMA Guides’ six criteria. The respondent argues that the applicant has not advanced evidence of chronic pain with functional impairment justifying removal from the MIG.

36While I am not bound by the AMA Guides, I note that the Tribunal has found them to be helpful to determine whether chronic pain is medically valid (see, for example, the Tribunal’s analysis in 17-007825 v. Aviva Insurance Canada, 2018 CanLII 98282 ON LAT). The AMA Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
2. Excessive dependence on health care providers, spouse, or family.
3. Secondary physical deconditioning due to disuse and or fear avoidance of physical activity due to pain.
4. Withdrawal from social milieu, including work, recreation, or other social contacts.
5. 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.
6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

37I find that the applicant has not put forward evidence that her physical injuries fall outside of the definition of a minor injury under s. 3(1) of the Schedule.

38I find that the applicant has not directed me any formal diagnosis of chronic pain, nor has she directed me to evidence of persistent pain complaints with corresponding functional impairment, such as medical CNRs, an OHIP summary, prescription summaries or employment records, that would indicate that she suffers from chronic pain with corresponding functional impairment as described in the AMA Guides.

39For this reason, I find that the applicant has not met her onus of demonstrating that she suffers from chronic pain with functional impairment warranting removal from the MIG.

The applicant is entitled to payment for chiropractic treatment under s. 38(11)

40Section 38(8) of the Schedule provides that, within 10 business days of receiving an OCF-18 for medical and rehabilitation benefits, the insurer shall give the insured a notice that identifies the goods and services that it agrees to pay for, and the medical and all of the other reasons why the insurer considers any goods and services not to be reasonable and necessary.

41Section 38(11) provides that if an insurer fails to give notice in accordance with s. 38(8), the following rules apply:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
2. 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).

42The applicant submits that because the OCF-18 for chiropractic services that was submitted on December 1, 2022 was not properly denied until June 12, 2023, the respondent is in breach of s. 38(11) of the Schedule. The applicant argues, citing Kyrylenko v. Aviva Insurance Canada, 2021 ONSC 4929, that a failure to respond within 10 business days renders the plan approved regardless of reasonableness of necessity. The applicant limited her submissions on the alleged breach of s. 38(11) to this single OCF-18.

43The applicant submitted her OCF-1 on December 7, 2022, thereby “completing” the OCF-18, and requiring the respondent to provide a notice within 10 business days, under s. 38(8). I note that the disputed OCF-18 sought treatment outside of the MIG.

44The respondent made no submissions on the alleged breach of s. 38(8), other than its claim that its notice to the applicant on December 6, 2022, was a valid notice.

45I find that the December 6, 2022 notice was non-compliant with s. 38(8) of the Schedule, because it did not provide the medical and other reasons for the denial. I find that the respondent’s notice of June 12, 2023 is a valid denial, because it met the criteria required by Smith, and it provided the medical and other reasons for the denial required under s. 38(8).

46Neither party made submissions on whether the applicant received funding for chiropractic services under the MIG, before June 12, 2023. I find that, although the disputed OCF-18 sought treatment outside of the MIG, under s. 38(11)(1), the respondent is prohibited from taking the position that the MIG applies to this OCF-18.

47I find that, under ss. 38(8) and 38(11), the respondent is responsible for amounts incurred by the applicant for chiropractic services, from 11 business days after receipt of the OCF-1 to the day of the denial (in other words, from December 22, 2022, to June 12, 2023) plus applicable interest.

The applicant is not entitled to funding for the other proposed OCF-18s

48I find that the applicant’s injuries, because of the accident, are “minor” as defined by the Schedule.

49Since I have determined that the applicant’s injuries are minor, the other OCF-18s seeking treatment outside of the MIG are not reasonable and necessary, and therefore not payable.

Interest

50The applicant is entitled to interest on delayed payment for chiropractic treatment incurred between December 22, 2022 and June 12, 2023, pursuant to the OCF-18 submitted December 1, 2022.

51As no benefits are owing on the other OCF-18s, the applicant is not entitled to interest for these treatment and assessment plans.

Award

52The 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.

53In general, the threshold for the Tribunal to grant an award under s. 10 is whether there was unreasonable behaviour in withholding or delaying the payment of benefits, which amounts to the insurer being excessive, imprudent, stubborn, inflexible, unyielding and immoderate. See, for example, the Tribunal’s decision in S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT).

54While I found that the respondent’s notice for the disputed OCF-18 for chiropractic services was non-compliant with s. 38(8) of the Schedule, I do not find that the respondent’s behaviour meets the threshold described above. I do not find that the respondent was unreasonable in reaching its conclusions, and therefore I deny the applicant’s claim for an award under s. 10 of the Regulation for delayed payment for those chiropractic services.

55Since I have found that no benefits are payable for the other OCF-18s, I do not find that the respondent unreasonably withheld or delayed payment. As a result, an award under s. 10 of Reg. 664. is not warranted.

ORDER

56The applicant has not demonstrated that her injuries warrant removal from the MIG.

57The applicant is entitled to payment for those portions of the OCF-18 for chiropractic services submitted December 1, 2022, that were incurred between December 22, 2022 and June 12, 2023, with interest.

58Since the applicant’s injuries are considered minor, the other proposed OCF-18s seeking services outside of the MIG are not payable.

59Since no benefits are payable for the OCF-18s (other than the OCF-18 for chiropractic service submitted December 1, 2022), no interest is payable for these OCF-18s.

60The applicant is not entitled to an award.