Bibi Masarat v. Co-operators General Insurance Company, 2026 CanLII 8165

Citation: Masarat v. Co-operators General Insurance Company, 2026 ONLAT 24-006433/AABS

Licence Appeal Tribunal File Number: 24-006433/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:

Bibi Masarat

Applicant

And

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Manuel Carrondo, Paralegal

For the Respondent: Julianne Brimfield, Counsel; Ethan Edwards, Counsel

HEARD: By way of written submissions

OVERVIEW

1Bibi Masarat, the applicant, was involved in an automobile accident on May 11, 2023, 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:

1. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from June 13, 2024, to date and ongoing?
2. Is the applicant entitled to the following cost of examination expenses and medical benefits proposed by Downsview Health in the following treatment plans (“OCF-18s”): a) $2,486.00 for a neurological assessment submitted March 1, 2024; b) $2,486.00 for a chronic pain assessment submitted February 17, 2024; and c) $2,103.90 ($4,204.32 less $2,100.42 approved) for psychological services submitted March 7, 2024?
3. Is the applicant entitled to interest on any overdue payment of benefits?

3In her submissions, the applicant withdrew her claim for an award. As a result, this issue will not be addressed in this decision.

RESULT

4After reviewing both parties’ submissions and all of the evidence I find as follows:

1. The applicant is not entitled to a NEB in the amount of $185.00 per week for the time period claimed.
2. The applicant is not entitled to the following OCF-18s proposed by Downsview Health: a) $2,486.00 for a neurological assessment submitted March 1, 2024; and b) $2,103.90 ($4,204.32 less $2,100.42 approved) for psychological services submitted March 7, 2024.
3. The applicant is entitled to $2,486.00 for the chronic pain assessment submitted February 17, 2024, plus interest in accordance with s. 51 of the Schedule.

ANALYSIS

The applicant is not entitled to a NEB in the amount of $185.00 per week for the time period claimed.

5Section 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 Company, 2009 ONCA 391 (“Heath”), which focuses on a comparison of the applicant’s pre-and post-accident activities. Some of the principles endorsed by Heath are:

i. A claimant who merely goes through the motions cannot be said to be engaging in an activity and the question is not whether a person can do the activity, but whether the impairment practically prevents them in engaging in activity.

ii. It is not enough to show changes from pre-to post-accident activities; the claimant must be continuously prevented from engaging in substantially all of their pre-accident activities.

iii. The manner in which an activity is performed, and the quality of performance post-accident must be considered. If the degree to which a claimant can perform the activity is sufficiently restricted, it cannot be said that he or she is engaging in the activity.

iv. Greater weight may be assigned to those activities which the claimant identifies as being more important to them in their pre-accident life.

6The respondent paid the applicant a NEB until June 12, 2024, when it denied the benefit based on its s. 44 insurer examination (“IE”) reports.

7The applicant argues that she has a complete inability to carry on a normal life because of her accident-related physical and psychological impairments. She relies on the clinical notes and records (“CNRs”) of her family doctor, the psychological report of Dr. Brunshaw dated February 26, 2024, and chronic pain report of Dr. Siddiqui dated September 12, 2024.

8The respondent submits that the applicant has not met her onus in proving that she meets the stringent test for NEBs. It maintains that she has not made meaningful submissions regarding her pre- and post-accident activities and identify what impairments prevented her from carrying out these activities. Further, it argues that the medical evidence she has relied upon is insufficient to prove that she has a complete inability to carry on a normal life as a result of the accident. It relies on the IE reports of Dr. Dessouki, physiatrist and Dr. Lau, psychologist both dated June 10, 2024.

9I find that the applicant fell short of meeting her onus in proving that she meets the test for NEBs for the following reasons.

10First, I find the applicant’s submissions unhelpful as far as setting out what her daily activities were prior the accident compared to her activities post-accident, and she did not identify what accident-related impairments prevented her from carrying out these activities. Her submissions state that because she was already disabled at the time of the accident, she meets the complete inability test because her chronic pain condition was exacerbated and resulted in new diagnoses and functional limitations. However, the applicant did not elaborate on what accident-related diagnoses resulted in any functional limitations. In addition, the applicant filed improper reply submissions and raised new arguments which should have been raised at first instance. For example, her reply submissions addressed for the first time what her pre-accident activities were (housework, cooking, laundry and cleaning and attending the mosque) and she argues that she can no longer do any of these activities. I note that this is an improper reply, and submissions are not evidence. Consequently, I have placed little weight on these submissions.

11I find that I have little evidence before me about what the applicant’s pre-accident activities were or what accident-related impairment prevented her from carrying out those activities. In addition, she did not identify the activities that she values most which would attract more weight under the Heath test. Without this evidence, I am unable to determine whether she meets the NEB test.

12Second, I do not find Dr. Brunshaw’s report persuasive because there was no discussion about the applicant’s pre-accident activities in the doctor’s report. I also find Dr. Brunshaw’s report to be heavily based on the applicant’s self-reports which I find to be unreliable. For example, the applicant reported to Dr. Brunshaw that prior to the accident she was strong and had lots of energy and was able to engage in her activities without difficulty. I find the applicant’s self-reports to Dr. Brunshaw to be contradicted by the pre-accident medical record and her submissions which concede that she had significant limitations prior to the accident because of her pre-accident health. Further, she did not report her pre-accident medical history to any of the assessors and was wholly inconsistent in her reports about the accident and post-accident function. The following are some examples:

a) She reported to Dr. Brunshaw that she did not recall whether she lost consciousness following the accident and was examined by paramedics and transported to the hospital. She reported to Dr. Lau that she hit her head on the head rest and lost consciousness for 15 minutes and woke up in the hospital. According to Dr. Dessouki, the applicant denied hitting her head or losing consciousness.

b) She reported to Dr. Brunshaw that following the accident she completes her self-care tasks slowly and she cannot walk, sit, or stand long because of pain and can only carry light items and is socially isolated. She reported to Dr. Dessouki that she had returned to light grocery shopping, cooking and laundry and light housekeeping chores. She is independent with personal care and has resumed socializing with family and friends, going for walks and watching television at a reduced capacity.

13I find the applicant’s self reports about sustaining a head injury and losing consciousness at odds with the medical record before me. Further, I note that her reports to Dr. Dessouki about her function do not support that she suffers a complete inability to carry on a normal life as a result of the accident. For these reasons, I place little weight on Dr. Brunshaw’s opinion.

14Third, I find the CNRs of the family doctor unhelpful because they simply note the applicant’s ongoing pain complaints and do not discuss any functional limitations.

15Fourth, I find Dr. Siddiqui’s report dated September 12, 2024, unhelpful because the accident is not mentioned. Moreover, the report notes ongoing cervical and lumbar pain for over 15 years which is worse with bending, lifting, sitting, walking, stairs and kneeling. These complaints impact functional ability, daily household tasks, work function and social activities. The doctor diagnosed the applicant with myofascial strain, fibromyalgia and degenerative disc disease causing sciatica. Of significance, the applicant was seeing Dr. Siddiqui prior to the accident. A report dated September 3, 2020, establishes that the applicant reported almost identical pain complaints and functional limitations as she did post-accident. In addition, Dr. Siddiqui’s diagnosis in 2020 was the same as it was in 2024. I find there is insufficient evidence before me to support that the applicant’s chronic pain condition was exacerbated or resulted in any new functional limitations.

16Finally, in contrast, the respondent relies on the IE reports of Dr. Dessouki and Dr. Lau who determined that the applicant did not have a complete inability to carry on a normal life. Dr. Dessouki reviewed the medical file and conducted a thorough physical examination which was for the most part normal. The doctor diagnosed the applicant with soft tissue injuries as a result of the accident and concluded that she did not suffer a complete inability to carry on a normal life. Dr. Lau came to the same conclusion. I prefer the IE report of Dr. Lau over Dr. Brunshaw because the doctor conducted an in-depth analysis of the applicant’s pre- and post-accident activities and opined that the applicant does not have a complete inability to carry on a normal life because of any accident-related psychological impairment. The applicant also reported to Dr. Lau that many of her limitations are because of physical pain as opposed to any psychological issues. And for the reasons noted above, I find it unclear to what degree the applicant’s pain complaints and functional limitations changed post-accident.

17For the above-noted reasons, I find that the applicant has not met her onus in proving on a balance of probabilities that she has a complete inability to carry on a normal life because of any accident-related impairments.

The applicant is not entitled to the OCF-18 for a neurological assessment in the amount of $2,486.00.

18Section 25(1) of the Schedule provides that an insurer shall pay for reasonable fees to complete as assessment. Section 25(5)(a) limits the cost of any one assessment or examination to $2,000.00. The applicant bears the onus of proving on a balance of probabilities that the assessment is reasonable and necessary. The jurisprudence also supports that to prove that an assessment is reasonable and necessary the applicant must have evidence that she has an accident-related impairment which the assessment is meant to address.

19Section 38(8) of the Schedule outlines that within 10 business days of receiving a treatment 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 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. Section 38(11) 2 of the Schedule supports that if an insurer’s notice does not comply with s. 38(8) it is liable to pay for the OCF-18 if it is incurred by the insured between the 11th business day after receipt of the OCF-18 and the day the insurer provides a compliant notice.

20The OCF-18 for the neurological assessment was authored by Dr. Basile, neurologist and the goal was to determine whether there are any accident-related neurological impairments and to provide recommendations for recovery. The cost of the OCF-18 was $2,000 for the assessment, $200 for form preparation plus tax for a total cost of $2,486.00.

21The applicant argues that the OCF-18 is reasonable and necessary to address issues regarding “radiculopathy of L spine and C spine, chronic post-traumatic headaches and shoulder joint pain.” She also maintains that the respondent failed to provide medical and other reasons for its denial pursuant to s. 38(8) of the Schedule and accordingly must pay for the OCF-18 pursuant to s. 38(11)2. She asserts that the respondent denied the OCF-18 because it took the position that the applicant’s impairments fit within the MIG. However, once she was removed from the MIG on June 11, 2024, the respondent had an obligation to re-evaluate its denial of the OCF-18. Consequently, its notice dated March 12, 2024 was in non-compliance with s. 38(8) of the Schedule and the respondent is required to pay for the OCF-18.

22The applicant relies on the Tribunal’s decisions in Yang v. Dominion of Canada General Insurance Company (Travelers) (“Yang”), 2022 CanLII 23412 (ON LAT) and Bygrave v. Cooperators General Insurance Company (“Bygrave”), 2025 CanLII 31135 (ONLAT) where the adjudicators determined that the insurer’s notice did not comply with s. 38(8) of the Schedule because they had an obligation to re-evaluate their past denials once the insureds were removed from the MIG. In particular, these decisions support that once the insureds were removed from the MIG the reasons for the denials were no longer true. Consequently, the adjudicators found the insurers liable to pay for the benefits in accordance with s.38 (11)2 of the Schedule.

23The respondent submits that the applicant has not met her onus in proving that the OCF-18 for a neurological assessment is reasonable and necessary. It posits that other than referring to the OCF-18 itself, the applicant has not directed the Tribunal to any medical evidence to support that a neurological assessment is reasonable and necessary as a result of any accident-related impairment. In addition, it asserts that the case law relied upon by the applicant is distinguishable from this case because it did re-evaluate the OCF-18 after the applicant was removed from the MIG. The respondent relies on a notice dated July 31, 2024, which advised the applicant that the OCF-18 for a neurological assessment was denied based on its review of the medical records, including the family doctor’s records and s. 25 and 44 reports which showed no evidence of a head injury or neurological impairment.

24I find the applicant has not proven that the OCF-18 for a neurological assessment is reasonable and necessary because other than the OCF-18 she did not direct the Tribunal to the medical evidence to support that she has impairments warranting a neurological assessment. Her submissions refer to “radiculopathy of L spine and C spine, chronic post-traumatic headaches and shoulder joint pain,” however, I find the evidence does not support these impairments. In addition, I find the scenarios in Yang and Belgrave distinguishable from this case because the adjudicators did not have evidence before them that the insurers re-evaluated their position on the denied treatment once the insureds were removed from the MIG. In this case, I find the respondent re-evaluated its denial of the OCF-18 and provided sufficient reasons for its denial.

25For the above-noted reasons, I find that the applicant has not met her onus in proving on a balance of probabilities that the OCF-18 for a neurological assessment is reasonable and necessary. Further, I find the OCF-18 is not payable under s. 38(11) 2 of the Schedule because I find the respondent’s denial complied with s. 38(8).

The applicant is entitled to the OCF-18 for a chronic pain assessment in the amount of $2,200.00.

26The OCF-18 dated February 17, 2024, for the chronic pain assessment was authored by Dr. Karmy, physician and the goal was to evaluate the extent of the patient’s chronic injuries to determine prognosis and recommend treatment. The OCF-18 noted that “it has been over 9 months since the patient was involved in the accident and continues to suffer from chronic pain as a result.” The cost of the OCF-18 was $2,000 for the assessment, $200 for form preparation plus tax for a total cost of $2,486.00.

27The applicant submits that the chronic pain assessment is reasonable and necessary because she suffers from chronic pain post-accident. She relies on the above-noted CNRs of her family doctor and report of Dr. Siddiqui. The applicant also submits that the respondent’s notice denying the OCF-18 did not comply with s. 38(8) of the Schedule because it did not re-evaluate its position once the applicant was removed from the MIG.

28The respondent argues that the OCF-18 for a chronic pain assessment is not reasonable and necessary. It relies on the IE report of Dr. Dessouki who determined that the applicant sustained soft tissue injuries as a result of the accident. It also submits that its notice complied with s. 38(8) of the Schedule based on the information it had available at that time.

29I find the applicant has not met her onus in proving that the chronic pain assessment is reasonable and necessary because I find that Dr. Siddiqui’s pre- and post-accident reports do not establish that the applicant’s chronic pain condition was exacerbated or resulted in any new diagnoses. However, I find that the respondent’s denials dated March 8, 2024, and June 12, 2024, did not comply with s. 38(8) of the Schedule, which I will address next.

30In response to the OCF-18, the respondent sent the applicant a notice dated March 8, 2024, advising the applicant that it had received the OCF-18 submitted February 26, 2024, proposing chiropractic treatment in the amount of $2,486, and that the chiropractic assessment was being denied based on the MIG. I find the respondent’s denial deficient because it refers to chiropractic treatment or an assessment and not a chronic pain assessment. I find that an unsophisticated party would not understand what benefit was being denied because it refers to chiropractic treatment by error.

31The respondent sent the applicant a subsequent notice dated June 12, 2024, which enclosed the IE report of Dr. Dessouki and advised that an assessment was conducted regarding the OCF-18 dated February 17, 2024, completed by Dr. Karmy and that the OCF-18 was not reasonable and necessary. Under medical reason, the notice referred to the report and findings of Dr. Dessouki who determined that the applicant sustained soft tissue injuries. I find this notice deficient because the notice did not indicate that a chronic pain assessment was being denied. Although Dr. Dessouki’s IE report renders an opinion that the chronic pain assessment is not reasonable and necessary, the respondent’s notice does not clearly state that that is what is being denied. I find the respondent’s denial confusing and that an unsophisticated party would not clearly understand what was being denied. Consequently, I find the respondent is liable to pay for the chronic pain assessment.

The applicant is not entitled to $2,103.90 for the partially denied OCF-18 for psychological treatment

32To receive payment for a medical benefit under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving same are reasonable.

33The OCF-18 proposed 14 hour and a half counselling sessions in the amount of $3,141.88 plus fees for report writing and form preparation for a total cost of $4,204.32. The respondent partially approved the OCF-18 in the amount of $2,100.42.

34The applicant argues that the OCF-18 is reasonable and necessary. She also submits that the respondent’s denial dated March 12, 2024, was non-compliant with s. 38(8) of the Schedule because it denied the OCF-18 based on the MIG. Further, once the applicant was removed from the MIG the respondent failed to provide medical and other reasons for the denial for the services outlined in the OCF-18 and consequently must pay for the denied portion of it.

35The respondent submits that it initially denied the OCF-18 based on the MIG; however, it revisited its decision after receiving the recommendations of Dr. Lau, who agreed that the applicant sustained a psychological impairment. Dr. Lau agreed that 14 counselling sessions were reasonable and necessary but opined that one-hour sessions were sufficient as opposed to one and a half hour sessions. It submits that Dr. Brunshaw did not render an opinion in their report regarding the duration of treatment sessions.

36I find the applicant has not met her onus in proving on a balance of probabilities that the denied portion of the OCF-18 is reasonable and necessary. The applicant did not make any submissions regarding why she requires hour and half long counselling sessions versus one-hour sessions. In addition, I find that Dr. Brunshaw recommended 14 counselling sessions but did not discuss the duration of treatment in the report. Finally, I find the applicant’s argument that the respondent’s notice did not comply with s. 38(8) of the Schedule has no merit. I find the evidence clear, that the respondent re-evaluated its position because it removed the applicant from the MIG as a result of Dr. Lau’s psychological report and partially approved the OCF-18.

37For the above noted reasons, I find the applicant has not met her onus in proving on a balance of probabilities that the partially denied portion of the OCF-18 for psychological treatment is reasonable and necessary.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the OCF-18 for a chronic pain assessment.

ORDER

39For the above-noted reasons, I order as follows:

1. The applicant is not entitled to a NEB in the amount of $185.00 per week for the time period claimed.
2. The applicant is not entitled to the following OCF-18s proposed by Downsview Health: a) $2,486.00 for a neurological assessment submitted March 1, 2024; and b) $2,103.90 ($4,204.32 less $2,100.42 approved) for psychological services submitted March 7, 2024.
3. The applicant is entitled to $2,486.00 for the chronic pain assessment submitted February 17, 2024, plus interest in accordance with s. 51 of the Schedule.