Citation: Rahaman v. Co-operators General Insurance Company, 2025 ONLAT 24-003977/AABS

Licence Appeal Tribunal File Number: 24-003977/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:

Andrew Rahaman

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Aric Bhargava

APPEARANCES:

For the Applicant:

Kim Mohammed-Sieudhan, Paralegal

For the Respondent:

Ravneet Panag, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Andrew Rahaman, the applicant, was involved in an automobile accident on December 15, 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 section 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 $3,244.58 for chiropractic services proposed by Alma Rehab Inc. in a treatment plan/OCF-18 (“plan”) submitted June 19, 2023?

iii. Is the applicant entitled to $3,512.56 for physiotherapy services proposed by Alma Rehab Inc. in a plan submitted February 5, 2023?

iv. Is the applicant entitled to $1,995.54 for a psychological assessment, proposed by Health Max Oakville in a plan submitted March 7, 2023?

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

vi. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant is subject to the MIG.

4As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

5As there are no overdue benefits, the applicant is not entitled to interest.

6The applicant is not entitled to an award under section 10 of Regulation 664 because no payments were unreasonably withheld or delayed.

PROCEDURAL ISSUE

7I deny the respondent’s request to omit the applicant’s award claim from the record.

8The respondent in its submission raised the issue of the applicant contravening the Case Conference Report and Order (“CCRO”) by failing to provide the particulars of the award claim within 30 days of receiving the adjusters’ log notes on October 28, 2024. The respondent relies on Dykeman v. TD General Insurance Company, 2023 CanLII 84364 (ON LAT) (“Dykeman”). In Dykeman, the Tribunal dismissed the award claim, as the claimant had failed to disclose the particulars of the award claim in accordance with the orders set out at the case conference. As such, the respondent argues that the Tribunal should dismiss the issue of the award.

9The applicant is silent on this issue. The applicant filed the particulars of the award claim with his submissions dated April 30, 2025.

10Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) provides that a party that fails to comply with an order to disclose particulars may not rely on the document as evidence without the consent of the Tribunal.

11The CCRO dated September 5, 2024 was clear that the deadline for the award particulars is within 30 calendar days after receipt of the adjuster’s log notes.

12The respondent has not directed me to evidence of any prejudice that was caused by this delay. While I am not bound by Dykeman, I find the applicant would suffer significant prejudice if his submissions on the issue of an award were excluded for the purposes of this hearing, as he has the burden of proof, and this would be disproportionate to the delay. Moreover, I find the respondent was able to respond to the applicant’s submissions on the issue of an award.

13I deny the respondent’s request to omit the applicant’s award submissions from the record.

ANALYSIS

Application of the Minor Injury Guideline

14I find the applicant’s injuries are predominantly minor injuries subject to treatment within the MIG.

15Section 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.”

16The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within 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.

17The applicant submits he has pre-existing conditions including depression and anxiety, and a psychological impairment as a result of the accident and these issues prevent maximal recovery if he is kept within the MIG.

18The applicant relies on the clinical notes and records (“CNRs”) of Dr. Vincent Utsalo, physician, and CNRs of Dr. Larab Ahmed, physician, the consultation report dated February 6, 2023 prepared by Victoria Brandolisio, social worker, and the section 25 psychological assessment dated October 3, 2024, prepared by Dr. Konstantinos Papazoglou, psychologist.

19The respondent submits the applicant’s injuries are within the MIG and that he has not met the burden of proof to warrant removal from the MIG.

Does the applicant have pre-existing conditions that prevent maximal recovery?

20I find the applicant has not met his onus in demonstrating his pre-existing conditions prevent maximal recovery within the MIG.

21The CNRs of Dr. Ahmed and Dr. Utsalo note throughout 2022, that he had a history of depression and anxiety. The CNRs note his anxiety was being managed through prescription psychotropics and ongoing visits to the family doctor. Accordingly, the applicant has established pre-existing conditions which were documented by his treating physicians.

22Now turning to whether the applicant’s pre-existing depression and anxiety prevents maximal recovery. I find the applicant has not demonstrated the pre-existing depression and anxiety prevents maximal recovery if he were kept within the MIG.

23The family doctor’s CNRs note the applicant’s accident-related injuries include back pain. In November 2023, eleven months after the accident, the doctor notes the applicant has stopped taking his prescribed medicine for his anxiety and it is the first note of psychological symptoms referred to in the CNRs. However, the CNRs do not note that his anxiety or depression is related to the accident.

24The section 25 report prepared by Dr. Papazoglou notes the applicant suffers from major depressive disorder however, the report does not provide an opinion on whether the applicant cannot achieve maximal recovery within the MIG. The applicant has not directed me to any reference in the CNRs of psychological issues as a result of the accident, or that it would prevent maximal recovery.

25The respondent submits the applicant’s anxiety is not due to the accident and his psychological issues are not preventing him from achieving maximal recovery. The respondent relies on the section 44 psychiatric assessment dated November 29, 2024, prepared by Dr. Robert Hines, psychiatrist.

26The section 44 report by Dr. Hines notes the applicant “has a past history of anxiety and depression and possibly bipolar disorder … his current complaints arise as a result of these non-accident-related psychiatric issues.” Dr. Hines also notes that the applicant does not have a pre-existing impairment that prevents maximal recovery within the MIG.

27I place more weight on Dr. Hines’ report and the family doctor CNRs. The CNRs corroborate the applicant’s pre-existing anxiety and depression, however, the CNRs do not refer to the accident during any of the visits in 2023 in which he self-reported his anxiety or depression related symptoms. I find it more probable that the applicant’s symptoms are, as Dr. Hines noted, a recurrence of pre-existing conditions and likely due to the discontinuation of his prescribed psychotropics. Finally, the applicant has not directed me to any medical evidence or medical opinion that his pre-existing depression and anxiety prevented his recovery within the MIG.

28I find the applicant has not met his burden to prove his pre-existing condition will prevent him from achieving maximal recovery under the MIG.

Does the applicant have a psychological impairment?

29I find the applicant has not met his burden to prove that he suffers from a psychological impairment resulting from the accident that would warrant removal from the MIG.

30The applicant submits that he has depression and anxiety since the accident. The applicant relies on the section 25 report prepared by Dr. Papazoglou and the consultation report dated March 27, 2024 prepared by Dr. Manamohan Johnson, psychiatrist.

31The CNRs of Dr. Johnson note the applicant’s self-reported complaints of “on and off” depression, low energy, and stress. Dr. Johnson notes the applicant is not on medication for his symptoms appeared around December 2023 and related to his work stress.

32I find Dr. Johnson’s report provides limited insight into the applicant’s psychological impairment because it does not refer to the accident, only “work-related issues” and couples therapy with his wife. The diagnosis is based on the applicant’s self-reported complaints with no objective testing measures.

33I place less weight on Dr. Papazoglou’s report, and I am not persuaded that the cause of the applicant’s symptoms was the accident. I find the report is inconsistent with the family doctor’s CNRs because the report states the applicant was never prescribed psychotropic medication, however, the CNRs note he was prescribed psychotropics for anxiety and depression in 2023 before the accident and the applicant selected to discontinue use of the medicine after eight months.

34The respondent submits the applicant has not suffered a psychological injury as a result of the accident. The respondent relies on the CNRs of Dr. Utsalo, the consultation report prepared by Dr. Johnson, and the section 44 psychiatric assessment prepared by Dr. Hines.

35I do acknowledge the applicant suffers symptoms of depression and anxiety and these symptoms re-emerged a year after the accident, and five months after he discontinued his prescribed depression medication. However, on a balance of probabilities, I find that the applicant’s pre-existing psychological symptoms were aggravated by the stoppage of his prescription medicines.

36I find, on a balance of probabilities, that the applicant has not met his burden to establish that he has a psychological impairment as a result of the accident.

37As I have found that the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owed, no interest is payable.

Award

39The applicant sought an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

40The applicant submits the respondent mishandled his claim and unreasonably withheld payment of benefits. The applicant relies on the section 44 report prepared by Dr. Hines and argues the report draws flawed conclusions.

41The respondent submits the applicant has not met his onus and it is well established for the insurer to rely upon independent medical opinions in the process of adjusting a claim.

42I find an award is not appropriate. I find the applicant has not met the onus to prove, on a balance of probabilities, that the respondent unreasonably withheld or delayed the benefits in dispute. As a result, no award is payable.

ORDER

43The applicant is subject to the MIG.

44As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

45As there are no overdue benefits, the applicant is not entitled to interest.

46The applicant is not entitled to an award under section 10 of Regulation 664 because no payments were unreasonably withheld or delayed.

47The application is dismissed.