Parker v. Cooperators General Insurance Company, 2025 CanLII 119976

Citation: Parker v. Cooperators General Insurance Company, 2025 ONLAT 23-014609/AABS

Licence Appeal Tribunal File Number: 23-014609/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:

Sam Parker

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Matthew Frontini

APPEARANCES:

For the Applicant:

Dayana Soto Santana, Paralegal

For the Respondent:

Emily Schatzker, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Sam Parker, the applicant, was involved in an automobile accident on June 22, 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:

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? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from July 13, 2023, to June 22, 2025?

iii. Is the applicant entitled to $2,676.00 for chiropractic services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) submitted November 2, 2023?

iv. Is the applicant entitled to $3,790.70 for psychological services, proposed by 101 Assessments in a plan submitted October 13, 2023?

v. Is the applicant entitled to $2,460.00 for an orthopaedic assessment, proposed by 101 Assessments in a plan submitted October 18, 2023?

vi. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a plan submitted August 11, 2023?

vii. Is the applicant entitled to $2,573.00 for physical rehabilitation, proposed by 101 Physio in a plan submitted December 14, 2023?

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

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

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 an NEB;

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 applicant is not entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule;

v. The applicant is not entitled to an award under s. 10 of Reg 664; and

vi. The application is dismissed.

ANALYSIS

The applicant is not removed from the MIG

4The applicant is not removed from the MIG. He has not established on a balance of probabilities that he 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 he should be removed from the MIG because he suffers accident-related chronic pain.

The applicant has not established that he suffers chronic pain with a functional impairment warranting removal from the MIG

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

9The applicant’s submissions regarding removal from the MIG on the basis of chronic pain are unclear. Most of the submissions refer to other Tribunal decisions that found the applicant in those cases to be removed from the MIG due to chronic pain based on the evidence tendered. The applicant’s submissions do not refer to specific evidence or describe how the referenced decisions relate to his application other than chronic pain is sufficient to warrant removal from the MIG.

10I also note that in the “POST-COLLISION HEALTH” section of his submissions, the applicant references complaints of persistent pain to his family doctor. The applicant also notes that pain medication was inefficacious in treating pain, as reported by his family doctor on October 4, 2023. I note however this specific record indicates that the inefficacy of pain medication was in relation to the treatment of Achilles tendonitis rather than any of the accident-related injuries reported by the applicant.

11I find that the applicant’s submissions do not establish that he suffers chronic pain with a functional impairment that warrants removal from the MIG. While the evidence does demonstrate pain complaints over an extended period, some of these complaints are not related to the accident. Furthermore, as described above in connection with the NEB issue, the evidence does not establish that applicant suffers functional impairment because of the accident. Given the dearth of evidence regarding the applicant’s functional impairments, I find that the applicant has not established on balance of probabilities that he suffers chronic pain with a functional impairment warranting removal from the MIG.

The applicant is not entitled to an NEB

12I find that the applicant has not established on a balance of probabilities that he is entitled to an NEB.

13Section 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 (“Heath”), which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

14The applicant submits that he is entitled to an NEB because he is substantially unable to sufficiently resume his everyday activities. The applicant’s submissions however do not refer to any specific pre-accident activities that he is not able to engage in post-accident. The applicant’s submissions also do not refer to any specific evidence pertaining to his pre- and post-accident function. Instead, the submissions refer to “all pertinent clinical notes and records concerning the matter.” It is inappropriate the Tribunal to go through a party’s evidence, as suggested by the applicant, to identify what, if any, pertinent evidence, supports the applicant’s claims. The applicant’s submissions do not meet his onus to establish, with reference to specific medical evidence, his entitlement to an NEB.

15The applicant further submits that the respondent is estopped from arguing that he is not entitled to an NEB because the respondent did not conduct section 44 assessments. Respectfully, this submission is ill-founded. There is no obligation on a respondent to conduct section 44 assessment and the burden of establishing entitlement remains with the applicant.

16The respondent submits that the applicant has not satisfied his evidentiary burden to establish entitlement to an NEB. The respondent notes that the only evidence in support of entitlement is the OCF-3, which alone is insufficient. The respondent also notes that according to his Activities of Normal Living (“ANL”) form and the clinical notes and records of 101 Physio, which indicate that the applicant experiences some impairment yet is functional, demonstrate that the applicant is not prevented from engaging in substantially all pre-accident activities.

17I find that the applicant has not established that he is entitled to NEBs as he has not established on a balance of probabilities that he satisfies the NEB Test.

18As the applicant is in the MIG, and the parties agree the MIG limits have been exhausted, it is not necessary for me to consider if the treatment plans in dispute are reasonable and necessary.

Interest

19Interest 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 benefits in dispute, he is not entitled to interest.

Award

20The 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.

21As the respondent did not withhold or delay any payment of benefits, I find that the applicant has not established that he is entitled to an award.

ORDER

22I find that: