Citation: John v. Co-operators General Insurance Company, 2026 ONLAT 24-013624/AABS

Licence Appeal Tribunal File Number: 24-013624/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:

Chonmath John Applicant

and

Co-operators General Insurance Company Respondent

DECISION

VICE-CHAIR: Brian Norris

APPEARANCES:

For the Applicant: George Campbell, Paralegal

For the Respondent: Emily A. Schatzker, Counsel Bianca F. Hosseini, Counsel

HEARD: By way of written submissions

OVERVIEW

1Chonmath John (“the Applicant”) was involved in an automobile accident on December 12, 2020, and sought benefits from Co-operators General Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The Preliminary issue is:

i. Is the Applicant barred from proceeding to a hearing for the benefits listed as issues 1, 4, and 5, below, because she failed to dispute the denial within the 2-year limitation period?

ISSUES

3The substantive issues in dispute are:

i. Is the Applicant entitled to a medical benefit in the amount of $2,460.00, less $2,260.00 approved by the Respondent, for a psychological assessment proposed by HealthMax Physio in a treatment plan/OCF-18 (“plan”) dated September 14, 2021?

ii. Is the Applicant entitled to a medical benefit in the amount of $3,396.15 for multidisciplinary treatment proposed by HealthMax Physio in a plan dated January 4, 2024?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,566.03 for a neurological assessment proposed by HealthMax Physio in a plan dated December 22, 2022?

iv. Is the Applicant entitled to a medical benefit in the amount of $3,862.56 for physiotherapy services proposed by HealthMax Physio in a plan dated August 12, 2021?

v. Is the Applicant entitled to a medical benefit in the amount of $4,256.34, less $2,317.08 approved by the Respondent, for psychological services, proposed by HealthMax Physio in a plan dated April 13, 2022?

vi. Is the Applicant entitled to a medical benefit in the amount of $2,244.19 for physiotherapy services proposed by HealthMax Physio in a plan dated November 15, 2022?

vii. Is the Applicant entitled to a medical benefit in the amount of $2,572.81 for psychological services proposed by HealthMax Physio in a plan dated December 13, 2023?

viii. Is the Applicant entitled to a medical benefit in the amount of $4,256.34 for psychological services proposed by HealthMax Physio in a plan dated December 13, 2023?

ix. Is the Applicant entitled to a medical benefit in the amount of $399.00 for psychological services, proposed by HealthMax Physio in a plan dated January 4, 2024?

x. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4The Applicant is barred from disputing her entitlement to the psychological assessment plan, dated September 14, 2021, the physiotherapy plan, dated August 12, 2021, and the driving assessment plan, dated April 13, 2022.

5The Applicant has not met her onus to demonstrate entitlement to the remaining benefits.

6No interest is payable.

7The Application is dismissed.

BACKGROUND

8The Applicant was the driver of a vehicle which had a side-to-side collision with another vehicle on a major highway. She sought no medical attention at the scene of the accident and was taken by tow truck to the collision reporting centre.

9The Applicant first reported the accident to her family physician, Dr. M. Henis, on March 22, 2021, more than three months after the accident. Dr. Henis’ clinical notes and records (“CNRs”) are difficult to read, but from what is legible it indicates that the Applicant was diagnosed with a musculoskeletal strain, given pain medication, and sent for x-rays. The x-ray results showed no acute injury and only degenerative changes to the Applicant’s neck and back.

10The Applicant met with Dr. Henis one other time, on June 5, 2021, to complain about accident-related issues. Again, the CNRs are difficult to read. Where legible, it notes that the Applicant was diagnosed with muscle pain, given a prescription for pain medication, and referred to physiotherapy.

ANALYSIS

Preliminary issue

11I find that the Applicant has not met her onus to demonstrate that she disputed the denial of the treatment plans listed as issues 1, 4, and 5 above, within the two-year limitation period outlined in section 56 of the Schedule.

12The Applicant submits that the limitation period does not bar her from proceeding with her claims because, according to her, the Respondent’s denials were deficient, ambiguous, or failed to properly advise her of her dispute resolution rights.

13The Respondent highlights that the Applicant has provided no submissions for how the denial notices were deficient and merely repeats the factors in Smith v. Co-operators General Insurance Co., 2002 SCC 30, and does not explain how or why those factors apply.

14I agree with the Respondent and find that the Applicant has not discharged her onus to demonstrate that she disputed her claim within the two-year limitation period. The Applicant bears the onus of demonstrating that she has disputed the denials within 104 weeks. Here, the Applicant has not directed me to any evidence demonstrating that the Respondent’s denials were insufficient to engage the limitation clock. Similarly, the Applicant has not identified the date the plans were submitted, thus I am unable to determine if the Respondent was untimely in its response, as required by section 38(8) of the Schedule.

15Nevertheless, I have reviewed the denials provided by the Respondent and find that they are compliant with the principles set out in Smith v. Co-operators and that the Applicant did not dispute those denials within the two-year limitation period, outlined in section 56 of the Schedule. Although it is not a requirement to engage the limitation clock as outlined in Smith, I also note that the denials are compliant with the Respondent’s obligations outlined in section 38(8) of the Schedule.

16The Applicant’s application to the Tribunal was submitted on November 5, 2024.

17The plan dated September 14, 2021, was denied by letter, dated November 16, 2021. The medical reasons include reference to the minor injury guideline (“MIG”) funding limits, that the Applicant’s medical records indicate that she sustained a minor injury in the accident, that the Applicant’s family physician, Dr. M. Henis, did not indicate a psychological impairment in their CNRs, and because no psychological impairment was identified in the Applicant’s disability certificate completed by Dr. D. Icarar, chiropractor, dated April 22, 2021. The denial included information on the Applicant’s right to dispute it and cited the two-year time limit to dispute the denial. This is a compliant denial which is sufficient to engage the limitation period. As the Applicant submitted her application to the Tribunal on November 5, 2024, it follows that she has not disputed the Respondent’s denial with in the requisite two-year limitation period.

18The plan dated August 12, 2021, was denied by letter dated September 2, 2021. The medical reasons for the denial refer to the timing of the plan in reference to the accident, that the disability certificate identified impairments consistent with treatment in the MIG, that it received no information that treatment beyond the MIG is reasonable and necessary, it had no information on how passive treatment will assist the Applicant with her rehabilitation goals, that it had not received the records from the Applicant’s family physician or any specialist, that it is unsure why a third “initial assessment” is required when treatment is being provided by the same facility, and that it was unsure if the session length was consistent with the Professional Services Guideline (“the PSG”). The denial included information on the Applicant’s right to dispute it and cited the two-year time limit to dispute the denial. This is a compliant denial which is sufficient to engage the limitation period.

19The plan dated April 13, 2022, was submitted on June 21, 2022 and denied by letter, dated July 4, 2022. The medical and other reasons provided in the letter are that the Applicant’s impairments are predominantly minor, that there is no evidence in Dr. Henis’ CNRs indicating that the Applicant sustained a psychological injury as a result of the accident, and that is continues to wait for the Applicant to provide the requested records from any specialists she has seen since the accident, as well as a decoded OHIP summary. The denial included information on the Applicant’s right to dispute it and cited the two-year time limit to dispute the denial. This is a compliant denial which is sufficient to engage the limitation period

20Lastly, the Applicant made no submissions on whether I should exercise my discretion to extend the limitation period beyond the two-year mark, thus I decline to do so. Pursuant to section 7 of the Licence Appeal Tribunal Act, the Tribunal has the discretion to extend any limitation period if it is satisfied that there are reasonable grounds for applying for the extension. Having received no submissions on the issue, I find no reasonable grounds to extend the limitation period outlined in section 56 of the Schedule.

21Accordingly, I find that the Applicant is barred from disputing the denials outlined in the preliminary issue.

Substantive issues

$3,396.15 for a multidisciplinary treatment plan, dated January 4, 2024

22I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that the multidisciplinary treatment plan is reasonable and necessary as a result of the accident. I note that the case conference report and order incorrectly state that this is a chiropractic treatment plan in the amount of $2,460.00. Upon review of the plan, I see that the amount of the plan is incorrect in the case conference report and order, and that the plan also includes physiotherapy and massage therapy treatment. I have amended the issue based on the evidence and submissions before me.

23The Applicant submits that she continues to suffer from musculoskeletal pain requiring ongoing treatment, that the plan is supported by clinical notes and records, and that the treatment is reasonable and necessary to restore her functioning and quality of life. The Applicant never directed me to any clinical notes and records to support her entitlement to this plan. She refers to clinical notes and records but does not say whose CNRs she is referring to.

24The Respondent submits that the Applicant has not specified what type of pain she experiences that requires ongoing treatment and does not reference any specific medical records to support her claim. It submits that no treating physician recommended chiropractic treatment, and that the applicant has not provided any reliable medical evidence indicating that further physical treatment is reasonable and necessary. The Respondent relies on the insurer’s examination report of Dr. D. Rabinovitch, physiatrist, dated March 14, 2023. It submits that Dr. Rabinovitch found that the Applicant exhibited full ROM throughout her neck, back, arms, hands, and hips. It further submits that Dr. Henis’ CNRs do not support this plan being reasonable and necessary because the Applicant only visited Dr. Henis twice following the accident, and that the Applicant never made any contemporaneous reports of accident-related pain. Lastly, the Respondent submits that any pain that the Applicant suffers from is likely related to degenerative changes to her neck and back, revealed through diagnostic imaging conducted on June 18, 2021.

25I agree with the Respondent and find that the Applicant has led no contemporaneous evidence to support a finding that further physiotherapy is reasonable and necessary as a result of the accident. She has provided no CNRs that reflect ongoing pain, injury, or impairment that would support further therapy. She has not provided any CNRs from her treatment facility to demonstrate ongoing pain or impairment. Likewise, Dr. Henis’ referral for physiotherapy was made in the summer of 2021. It cannot be said that the referral remains valid for a plan submitted in January 2024.

26Accordingly, I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that the physiotherapy treatment plan is reasonable and necessary as a result of the accident.

$2,566.03 for a neurological assessment plan, dated December 22, 2022

27I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that this plan is reasonable and necessary as a result of the accident.

28The Applicant submits that this is reasonable and necessary because she has persistent headaches and neurological symptoms. She has not directed me to any evidence, nor any medical evidence, to support her claims of persistent headaches and neurological symptoms.

29The Respondent submits that the Applicant’s medical records do not include evidence of persistent headaches and neurological symptoms. It submits that the Applicant never reported headaches to Dr. Henis, and that no medical practitioner has suggested that a neurological assessment is warranted. It also submits that it is not required to pay for a neurological assessment pursuant to section 47(2) of the Schedule because it is available to the Applicant through an OHIP provided neurologist.

30I find that the Applicant has led no compelling evidence indicating that she suffers from or may suffer from a neurological impairment or injury as a result of the accident. Dr. Henis’ CNRs, from what is legible, do not include any neurological complaints from the Applicant. Additionally, during the March 23, 2021, visit with Dr. Henis, the Applicant denied suffering from headaches following the accident. I am unable to find that a neurological assessment is reasonable and necessary in the absence of any reports of a neurological impairment, and where the evidence includes a denial from the Applicant that she suffered from accident-related headaches.

31Accordingly, I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that a neurological assessment is reasonable and necessary as a result of the accident.

$2,244.19 for a physiotherapy plan, dated November 15, 2022

32I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that ongoing physiotherapy is reasonable and necessary as a result of the accident.

33The Applicant submits that her accident-related injuries required extended physiotherapy and that the disputed amounts reflect her ongoing need for treatment, particularly to improve her range of motion (“ROM”) and pain management. She submits that the Respondent failed to recognize her slow recovery trajectory and that the treatment is supported by medical evidence.

34The Applicant has not directed me to any medical evidence to support her entitlement to the plan.

35The Respondent submits that Dr. Rabinovitch found the assessment of the Applicant to be normal and that the Applicant had full ROM in all relevant areas. It submits that the Applicant’s two complaints to her family physician are not indicative of someone who needs “pain management”. It further submits that the Applicant advised Dr. R. Silverman, psychologist, in the IE dated September 15, 2022 that she is working around 45 hours per week following the accident and is independent with her personal care, caregiving tasks, and driving.

36I find that the Applicant has led no contemporaneous evidence in support of ongoing physiotherapy. As noted earlier, the Applicant never raised the issue of an accident-related injury after her June 5, 2021 visit with her family physician. It cannot be said that the referral for physiotherapy in June 2021 is relevant for November 2022. The Applicant’s lack of complaints to her family physician is consistent with her self-reporting to Dr. Silverman that she is working approximately 45 hours per week and is independent with her personal care, caregiving tasks, and driving.

37Accordingly, I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that ongoing physiotherapy treatment is reasonable and necessary as a result of the accident.

$2,572.81 for a driving assessment plan, dated December 13, 2023, $4,253.34 for a psychological treatment plan, dated December 13, 2023, and $399.99 for psychological services invoiced January 4, 2024

38I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that ongoing psychological treatment is reasonable and necessary as a result of the accident.

39For these two plans and the $399.00 expense, the Applicant submits that she suffers from persistent psychological impairments, including anxiety and depression, directly attributable to the accident. She submits that psychological therapy was prescribed by treating providers and remains crucial to her functional recovery. The Applicant directs me to the psychological assessment report by certified psychological associate Z. Ladak, dated February 4, 2022, which finds that she suffers from Somatic Symptom Disorder with Predominant Pain, Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Vehicular Phobia. She highlights that certified psychological associate Ladak recommended a course of 15 sessions of cognitive behaviour therapy to restore functioning, with supplementary interventions for driving anxiety, team coordination, and ongoing mental health supports.

40The Respondent notes that it approved a psychological treatment plan on September 19, 2022, in accordance with the recommendation of certified psychological associate Ladak. The Respondent submits that the psychological treatment plans in dispute, which were proposed after it approved a psychological treatment plan, are not reasonable and necessary based on the opinion of Dr. V. Sivasubramanian, psychiatrist, in the IE report dated April 24, 2024. It submits that Dr. Sivasubramaniam found that the Applicant’s mental health symptoms were minimal and that she did not have a psychiatric impairment related to the accident. It further submits that the Applicant’s medical file does not support ongoing psychological treatment as she denied disassociated flashbacks, frequent intrusive thoughts, and dreams about the accident. The Applicant also reported to Dr. Sivasubramaniam that her mood is generally “okay”, and the CNRs from Dr. Henis do not indicate any ongoing psychological symptoms.

41The Respondent submits that the invoice in dispute in the amount of $399.00 is related to the plan, dated April 13, 2022, and is a duplication of issues. The Applicant had an opportunity to address this in reply submissions, but chose not to.

42With respect to the driving anxiety assessment, the Respondent submits that the Applicant has not demonstrated why a driving anxiety assessment is reasonable and necessary. It submits that the Applicant has not provided any compelling, contemporaneous medical evidence to support a finding that the assessment is reasonable and necessary as a result of the accident. Lastly, it submits that a recommendation for supplementary interventions for driving anxiety, as recommend by certified psychological associate Ladak, does not warrant a complete driving anxiety assessment. Moreover, the Respondent submits that the Applicant’s submissions that she suffers from a fear of driving and accident-related flashbacks is not reflected in her medical records and is inconsistent with her own reports to Dr. Sivasubramanian, which noted that she was independent with her driving and had no significant anxiety or avoidance.

43I agree with the Respondent and find that the Applicant has led no contemporaneous evidence to support ongoing psychological treatment, or a driver’s assessment. I find that the psychological assessment reports in 2022 hold virtually no weight when assessing whether further treatment is reasonable and necessary, more than a year and a half later after the reports were issued. The Respondent approved psychological treatment for the Applicant during that period. There is no evidence depicting the outcome of that approved treatment such as clinical notes and records or a progress report. Similarly, the Applicant has not directed me to any complaints of a psychological nature post-dating that assessment. The CNRs from Dr. Henis’ records are mostly illegible and, where legible, do not include anything that would suggest ongoing psychological impairment, or driving anxiety.

44I find that a driving anxiety assessment is not reasonable and necessary because the Applicant has not demonstrated an impaired ability to drive and has not submitted any contemporaneous evidence to support the need for an assessment. The Applicant has regularly reported that she continued to drive following the accident. By driving for over three years following the accident, without the need for a driving assessment and without any complaints of driving anxiety to any other healthcare professional, the Applicant has demonstrated that she does not suffer from a driving impairment and that a driving anxiety assessment is not reasonable and necessary as a result of the accident.

45There is no evidence indicating that the Applicant submitted a psychological treatment plan, in the amount of $399.00. The Applicant submits as evidence; a denial related to psychological services in the amount of $399.00 which relates to an invoice submitted to the Respondent by the Applicant’s treatment provider. The denial states that the expense is not payable until the Applicant provides evidence demonstrating that it was submitted to her collateral insurer first.

46If the $399.00 relates to the psychological treatment plan previously approved by the Respondent, it is not at issue in this hearing. Further, the Respondent is within its right to ask that the Applicant submit expenses to her collateral insurer first, consistent with section 47 of the Schedule.

47In the alternative, the Applicant is not entitled to the $399.00 medical benefit if it stems from services incurred prior to submitting a plan. This is because the Respondent is not liable to pay for goods and services that were incurred prior to submitting a plan, pursuant to section 38(2) of the Schedule.

48Accordingly, I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that these plans and the expense are reasonable and necessary as a result of the accident.

Interest

49Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that I find no interest is payable.

CONCLUSION AND ORDER

50The Applicant is barred from disputing her entitlement to the psychological assessment plan, dated September 14, 2021, the physiotherapy plan, dated August 12, 2021, and the driving assessment plan, dated April 13, 2022.

51The Applicant has not met her onus to demonstrate entitlement to the remaining benefits.

52No interest is payable.

53The Application is dismissed.