Burnett v. Co-operators General Insurance Company, 2025 CanLII 102202

Citation: Burnett v. Cooperators General Insurance Company, 2025 ONLAT 23-012645/AABS

Licence Appeal Tribunal File Number: 23-012645/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:

Winston Burnett

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Maria Makarova, Paralegal

For the Respondent: Julianne Brimfield, Counsel

HEARD: By way of written submissions

OVERVIEW

1Winston Burnett, the applicant, was involved in an automobile accident on June 18, 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, Cooperators General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is:

1. Should the applicant be barred from proceeding with this application because the applicant did not attend section 44 assessments in accordance with s. 55 of the Schedule?

SUBSTANTIVE ISSUES IN DISPUTE

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 limit? The respondent submits that there is $465.07 remaining under the MIG limit.
2. Is the applicant entitled to the services proposed by Mackenzie Medical, as follows: i. $3,348.87 for physiotherapy services, in a treatment plan submitted August 4, 2022; ii. $3,183.14 for physiotherapy services, in a treatment plan submitted September 22, 2022; iii. $2,851.68 for physiotherapy services, in a treatment plan submitted December 13, 2022; iv. $2,851.68 for physiotherapy services, in a treatment plan submitted June 7, 2023; and v. $2,520.00 for physiotherapy services, in a treatment plan submitted October 25, 2023?
3. Is the applicant entitled to the assessments proposed by Life Point, as follows: i. $2,000.00 for psychological assessment, in a treatment plan submitted December 18, 2022; ii. $2,200.00 for a chronic pain assessment, in a treatment plan submitted April 6, 2023; and iii. $3,777.50 for psychological services, in a treatment plan submitted November 4, 2022?
4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

Preliminary issue:

4I find that:

1. The applicant is not barred from bringing his application

Substantive issues:

5I find that:

1. The applicant has predominantly minor injuries and is subject to the MIG and its $3,500.00 funding limit.
2. As the applicant is subject to the MIG, it is not necessary to consider whether the treatment plans are reasonable and necessary.
3. As no payments are owing, no interest is due.
4. The applicant is not entitled to an award.
5. The application is dismissed.

ANALYSIS

PRELIMINARY ISSUE

Should the applicant be barred from proceeding for failing to comply with s. 44 of the Schedule?

6I find that the applicant is not barred from proceeding with his application due to his failure to attend two s. 44 insurers examinations (“IEs”) on April 23, 2024 and May 29, 2024.

7Section 44 of the Schedule provides that an insurer may require an insured person to be examined at an IE to assess entitlement to a benefit under the Schedule, but not more than is reasonably necessary. A proper notice under s. 44(5) must state the medical reason and any other reasons for the examination; whether the insured’s attendance is required at the IE; the name, title and designation of the person conducting the IE; and the date, time and location of the assessment. The insurer shall make reasonable efforts to schedule the IE for a day, time and location that are convenient for the insured.

8Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied.

9These provisions of the Schedule make it clear that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule-compliant notice. The respondent must first prove that a NOE is compliant with section 44(5) of the Schedule in order to rely on it as a basis to seek a statutory bar under section 55.

10The respondent raised the preliminary issue by way of motion filed July 9, 2024, submitting that the applicant should be barred from bringing his application because he had failed to attend two properly scheduled s.44 insurer examinations (“IEs”) requested by the respondent in a Notice of Examination (NOE) dated April 23, 2024.

11The applicant argues that he did not attend the IEs because they were not reasonably required because the respondent did not schedule the IEs until more than a year after the application was filed. It is the applicant’s position that the respondent requested the IEs to buttress its case for the hearing.

12I find that the NOE is not compliant with s. 44(5) of the schedule. The NOE does not identify the applicant’s injuries or any information about the applicant’s injuries that the respondent requires. Further, the NOE references the Minor Injury definition, but does provide the definition, or mention the MIG, or refer the applicant to the relevant section of the Schedule. Additionally, I find the NOE confusing because it does not identify which of the eight treatment plans mentioned in the NOE are to be considered in the physiatry assessment, and which are to be considered in the psychological assessment.

13For theses reasons, I find that the NOE is not sufficiently clear and detailed for an unsophisticated person to make an informed decision whether to dispute the notice.

14As a result, I find that the notice does not comply with s.44(5), and it is not necessary for me to consider whether the IE’s were reasonable. Accordingly, the applicant is not barred from bringing his application.

SUBSTANTIVE ISSUES:

Applicability of the MIG

15I find that the applicant sustained predominantly minor injuries, and remains subject to the MIG and its $3,500.00 funding limit.

16Section 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.”

17An 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.

18The applicant submits that he should be removed from the MIG because he suffers from a psychological impairment and chronic pain

19The respondent argues that the applicant has not met his burden to prove that he has a psychological impairment or chronic pain, because the applicant has provided insufficient evidence in support of his submissions.

Psychological Impairment

20I find that the applicant has not established that he has a psychological impairment as a result of the accident.

21The applicant submits that he was diagnosed with Adjustment Disorder with Anxiety Mood following a psychological assessment on October 27, 2022, conducted by Stacy Yong, psychotherapist and Dr. Singh.

22The s. 25 examination conducted by Ms. Yong and Dr. Singh consisted of a clinical interview and psychometric testing. In their report dated October 28, 2020, the assessors opined that the applicant met the criteria for a diagnosis of Adjustment Disorder with Anxiety Mood, and recommended 16 sessions of psychotherapy.

23The respondent argues that the s.25 report is not reliable because the applicant’s psychometric test results are not consistent with the conclusions in the report, and he s.25 report is not corroborated by the CNRs of Dr. Eapen, which reveal a single complaint of the applicant experiencing stress due to marital issues at his August 22, 2022 appointment but Dr. Eapen did not reference the accident at that time. The respondent notes that there are no further complaints of psychological symptoms, and no evidence of a referral by a treating physician to a psychologist or psychiatrist for assessment or treatment.

24I agree with the respondent that the psychometric testing results, namely mild levels of anxiety, minimal levels of depression and below average patient anxiety and somatization scores, do not appear to be consistent with the conclusions in the report. For example, the assessors opined that the applicant had symptoms of anxiety when in a vehicle, which resulted in various adverse effects, despite the applicant denying that he suffered from driver or passenger anxiety.

25Further, the only documents reviewed by the assessors were Ms. Yong’s pre-screening report and the OCF-3. The report’s findings contain multiple references to the applicant’s physical injuries as a factor in the applicant’s diagnosis, but the assessors did not review the CNRs of the applicant’s family physician, Dr. Eapen, which do not corroborate the applicant’s reports with respect to his medical history or his function. Furthermore, the applicant has not directed me to any other medical evidence to corroborate the applicant’s reported psychological symptoms or functional limitations.

26For these reasons, I assign little weight to the s.25 report, and absent any other medical or other evidence to corroborate the applicant’s psychological symptoms or their claimed impact on the applicant’s function, I have insufficient basis to find that the applicant suffers from a psychological impairment.

27Therefore, I find that the applicant has not met his onus to prove on a balance of probabilities that he has a psychological impairment as a result of the accident.

Chronic Pain

28I find that the applicant has not established that he has chronic pain with functional impairment as a result of the accident.

29The applicant submits that he has experienced ongoing pain in his lower back and neck since the accident, and that he has been diagnosed with chronic pain by Dr. Mark Goldstein, physician.

30The CNRs of the Humber River Hospital reveal that the applicant was taken to the hospital after the accident and complained of chest, shoulder, and flank pain. He received a chest x-ray and was discharged with “chest pain, traumatic.”

31I find that the applicant has not established that his lower back pain is accident-related, because Dr. Eapen’s CNRs reveal that the applicant attended his family physician 3 days before the accident complaining of lower back pain, and returned 2 days after the accident, with the same complaint. Dr. Eapen referred the applicant for an x-ray of his lower back to rule out a fracture before referring the applicant for physiotherapy. The x-ray revealed a degenerative lumbar spine condition that had remained mostly unchanged since a previous x-ray in 2017. Dr. Eapen referred the applicant for physiotherapy, but did not record a diagnosis or the cause of the back pain. Because the applicant complained of low back pain immediately before the accident, and the evidence reveals that the applicant had a degenerative condition in his lumbar spine which is not accident related, I find that the applicant has not established on a balance of probabilities that his lower back pain resulted from the accident.

32However, Dr. Eapen’s CNRs clearly indicate that she attributed the neck pain that the applicant first complained of six weeks later, on August 3, 2022, to the accident. Dr. Eapen set the applicant for imaging for his neck and shoulder, which resulted in a normal study of his cervical spine. The applicant complained of pain in his neck again on three occasions between December 2022 and May 2023, and complained of back pain in January 2023 and May 2023. He did not complain of back and neck pain again until five months later in October 2023, which I find indicates periodic, rather than chronic pain. Dr. Eapen continued to prescribe physiotherapy, which the applicant indicated improved his symptoms.

33The applicant submits that Dr. Goldstein diagnosed the applicant with chronic pain after his s. 25 chronic pain assessment on October 27, 2023. In addition to a virtual examination of the applicant Dr. Goldstein reviewed the applicant’s medical records, conducted an interview of the applicant, and administered psychometric testing. He diagnosed the applicant with chronic pain, probable spinal deconditioning, chronic cervical spinal pain, exacerbation of pre-existing chronic lumbar spinal pain, and persistent headaches attributed to whiplash injury.

34The respondent submits that the s.25 report is not supported by the CNRs of Dr. Eapen, and that there is no evidence of functional impairment.

35I place little weight on Dr. Goldstein’s s. 25 report, in part, because he did not conduct the physical examination in person. I find that the applicant’s self reports with respect to his symptoms and function are not corroborated by Dr. Eapen’s CNRs and are inconsistent with the applicant’s self reports to Ms. Yong and Dr. Singh. For instance, the applicant reported that he did not he was not experiencing driver anxiety or nightmares to his psychological assessors in 2022, but told Dr. Goldstein that he was experiencing both.

36I find that Dr, Goldstein’s diagnosis of persistent headaches is not corroborated by Dr. Eapen’s CNRs or other medical evidence. I further find that Dr. Goldstein’s diagnosis of “probable spinal deconditioning” is speculative, as it is not supported by Dr. Goldstein’s summary of his virtual physical examination. And, while Dr. Goldstein opined that the applicant had an exacerbation of pre-existing chronic low back pain, he also asserts that the applicant’s chronic pain is a result of the subject accident, which I find unclear.

37The respondent further argues that the applicant does not meet three of the six criteria for a diagnosis of chronic pain in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”) The applicant argues that interpretation of the AMA Guides is not required because Dr. Goldstein’s report established that the applicant has received a diagnosis of chronic pain and has functional impairment.

38I agree with the applicant that interpretation of the AMA Guides is not a requirement, and as the applicant has not provided submissions with respect to the six criteria in the AMA Guides, I find that an analysis of them will not be helpful to my determination in the present case.

39Finally, I find that the evidence does not establish that the applicant has functional impairment due to his accident-injuries. The applicant returned to work in a physically demanding job one week after the accident. He is independent in his personal care, and although he experiences some pain, he has resumed his household cleaning, maintenance and repair duties, with some help from his son to shovel snow and carry heavier items. The applicant reported taking long walks and going to the gym three to four times per week, where he lifts weights and uses the stationary bicycle.

40For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that he suffers from chronic pain with functional impairment.

41Accordingly, the applicant remains within the MIG.

42As I have found that the applicant remains within the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.

Interest

43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

Award

44The 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. As no payments were unreasonably withheld or delayed, the applicant is not entitled to an award.

ORDER

45I find that:

1. The applicant has predominantly minor injuries and is subject to the MIG and its $3,500.00 funding limit.
2. As the applicant is subject to the MIG, it is not necessary to consider whether the treatment plans are reasonable and necessary.
3. As no payments are owing, no interest is due.
4. The applicant is not entitled to an award.
5. The application is dismissed.