Melat M Yemane v. Co-operators General Insurance Company, 2026 CanLII 6239

Citation: Yemane v. Co-operators General Insurance Company, 2026 ONLAT 24-007316/AABS

Licence Appeal Tribunal File Number: 24-007316/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:

Melat M Yemane

Applicant

And

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Matthew Frontini

APPEARANCES:

For the Applicant:

Kameliya Stancheva, Paralegal

For the Respondent:

Daniel M Himelfarb, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Melat Yemane, the applicant, was involved in an automobile accident on August 3, 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, 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 August 31, 2022, to August 3, 2024?

iii. Is the applicant entitled to $1,397.00 for physiotherapy services, proposed by Wellington Physiotherapy Associates in a treatment plan/OCF-18 dated March 20, 2024?

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

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

vi. Is the applicant entitled to costs of this proceeding?

RESULT

3I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 limit of the MIG;

ii. the applicant is not entitled to a NEB of $185.00 per week from August 31, 2022, to August 3, 2024;

iii. As the applicant is in the MIG, it is not necessary to consider if the disputed treatment plans are reasonable and necessary;

iv. the respondent is not liable for an award pursuant to s. 10 of R.R.O. 1990, Reg. 64;

v. The applicant is not entitled to interest in respect of the disputed treatment plans in accordance with s. 51 of the Schedule;

vi. The applicant is not entitled to costs pursuant to Rule 19; and

vii. The application is dismissed.

ANALYSIS

The applicant is not removed from the MIG

4The applicant is not removed from the MIG. She has not established on a balance of probabilities that she has suffered more than a minor injury because of the accident.

5Section 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.”

6An 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 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.

7In this case, the applicant submits that there is compelling evidence of ongoing impairment and limitations beyond the timeframe expected for the healing a minor injury, and therefore, the MIG does not apply. The applicant does not cite any authority to support this proposition. While the applicant does not use the term “chronic pain”, her submissions appear to relate to established Tribunal precedent regarding chronic pain resulting in functional impairments as warranting removal from the MIG.

The applicant has not established that she suffers chronic pain warranting removal from the MIG

8I find that the applicant has not established on a balance of probabilities that she suffers from chronic pain with a functional impairment warranting removal from the MIG.

9The applicant submits that the evidence establishes persistent reporting of pain well beyond the three-to-six-month timeframe expected for healing of minor injuries. Specifically, the applicant cites a single record of a visit to her family doctor, Dr. Ul Haq, on September 24, 2024. Dr. Ul Haq noted that applicant reported back pain that was aggravated with lifting. This note does not describe any specific functional limitations, level of impairment or intensity of pain and does not reference the accident.

10I find that the applicant’s submissions and the evidence do not establish that she suffers a functional impairment as a result of pain that would warrant removal from the MIG. The single record from Dr. Ul Haq is insufficient to establish that the applicant has accident-related chronic pain. It also does not establish that the applicant has suffered functional impairments related to chronic pain that would warrant removal from the MIG.

11The applicant also argues that the respondent has not sufficiently established that the applicant is not within the MIG. For example, the respondent relies on the s. 44 assessment report of Dr. Zabieliauskas, physiatrist, dated January 12, 2023, which concluded that the applicant has sustained minor injuries. In criticizing Dr. Zabieliauskas’ assessment, the applicant argues that it does not take into account that the applicant has reported sustained functional limitations.

12Respectfully, the applicant’s argument misapplies the burden of proof in applications before the Tribunal pursuant to the Schedule. The onus is on the applicant to establish, on a balance of probabilities, and with compelling medical evidence, that she is outside of the MIG. There is no requirement for respondent to establish on a balance of probabilities that the applicant is within the MIG. Further, the applicant’s submission that Dr. Zabieliauskas failed to properly consider the applicant’s functional limitations relies on the premise that applicant has established such functional limitations. As described above, I have found that the applicant has not established that she suffers functional limitations as a result of persistent accident-related pain.

13The applicant has not established on a balance of probabilities that she suffers from chronic pain with a functional impairment warranting removal from the MIG.

The applicant is not entitled to an NEB

14I find that the applicant has not established that she is entitled to an NEB.

15Section 12(1) provides that an insurer shall pay an 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 “NEB Test”). The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

16The applicant’s submissions make general statements that she suffers a complete inability to carry on a normal life. More specifically, the applicant references complaints of pain and argues this pain interferes with her daily tasks such as driving, lifting, and even sleeping. The applicant submits that limitations resulting from this pain have affected her ability to return to her regular routines, responsibilities, and social life, which includes both work and non-work activities.

17Further, as with her other submissions, the applicant argues that the respondent has failed to properly assess her medical state and account for the full scope of her functional impairments. Respectively, these submissions do not assist the applicant. It is the applicant’s onus to establish on balance of probabilities with compelling medical evidence that she meets the NEB Test.

18The applicant’s submissions and evidence do not establish that she is entitled to an NEB. In Heath at paragraph 50, the Court of Appeal emphasized:

i. Consideration of a claimant's activities and life circumstances prior to the accident requires more than taking a snapshot of a claimant's life in the time frame immediately preceding the accident. It involves an assessment of the appellant's activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.

ii. In order to determine whether the claimant's ability to continue engaging in "substantially all" of his or her pre- accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered.

iii. It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities.

19In Heath, the plaintiff provided virtually no evidence concerning his pre-accident activities or concerning the extent to which she was prevented from engaging in those activities within the two-year period following the accident. He failed to establish a change to his activities after the accident. The dearth of evidence relating to his pre-accident activities precluded a finding that he qualified for non-earner benefits.

20This case is similar to Heath. The applicant’s submissions do not identify evidence related to any pre-accident activities. Her submissions also do not describe the extent to which she is prevented from engaging in any specific pre-accident activities as a result of her accident-related impairments. In fact, the clinical note from her family doctor, Dr. Ul Haq, dated September 24, 2024, that the applicant relies on, is outside the NEB eligibility period of within 104 weeks after the accident. This note also does not describe any specific functional limitations, level of impairment or intensity of pain.

21I find that the applicant’s submissions and evidence do not establish that she has met the NEB Test on a balance of probabilities, and therefore, I find that she is not entitled to an NEB.

The treatment plans in dispute

22As I have found that the applicant is not removed from the MIG, I do not need to consider whether the disputed treatment plans are reasonable and necessary.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is not entitled to any overdue payments, she is not entitled to interest.

Award

24The 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.

25Given my finding that there are no benefits owing (and by extension, no benefits were unreasonably withheld or delayed) to the applicant, there is no basis for an award.

The applicant is not entitled to costs in this proceeding

26Costs were not listed as an issue in dispute in the case conference report and order of Adjudicator Kevin Yarde, dated November 12, 2024. This issue was only raised in the last paragraph of that applicant’s submissions, stating that she is entitled “…costs due to the [r]espondent’s unreasonable denial of benefits.” The respondent’s submissions did not engage on the issue of costs.

27As the application in this proceeding was filed on August 24, 2023, the Licence Appeal Tribunal Rules, 2023 (the “Rules”) apply to this hearing. Rule 19.1 provides that a party make requests costs when it believes another party has acted unreasonably, frivolously, vexatiously, or in bad faith, in the conduct of the proceeding before the Tribunal. I note that Rule 19.2 specifically provides that a request for costs may be made to the Tribunal at any time before a decision or order is released.

28The applicant’s request for costs pursuant to Rule 19 is denied. Her submissions do not identify any specific conduct of the respondent in this proceeding that was unreasonable, frivolous, vexatious, or in bad faith. Absent such conduct, costs are not warranted.

ORDER

29I find that: