Citation: Eisner v Cooperators General Insurance Company, 2025 ONLAT 23-009845/AABS

Licence Appeal Tribunal File Number: 23-009845/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:

Christina Eisner

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Estella Muyinda

APPEARANCES:

For the Applicant: Michael Wade, Counsel

For the Respondent: Julianne Brimfield, Counsel

HEARD: By way of written submissions

OVERVIEW

1Christina Eisner, the applicant, was involved in an automobile accident on July 21, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The 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

3The 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 limit (“MIG”)? The parties agree the limits have been exhausted.

ii. Is the applicant entitled to $915.00 for optometric services, proposed by Dr. Jonathan Wareham in a treatment plan/OCF-18 (“plan”) denied on February 10, 2023?

RESULT

4I find that the applicant has demonstrated that she sustained a concussion, an injury that is not predominantly minor. As a result, the applicant is not subject to the MIG.

5The applicant is not entitled to the treatment plan for $915.00 for optometric services.

PROCEDURAL ISSUE

6The respondent submits that Dr. Mai’s report dated May 30, 2023, is barred by Rule 9.3 of the Licence Appeal Tribunal Rules (“Rules”). This is because the applicant failed to serve the report within 75 calendar days from the date of the case conference.

7The respondent submits that the report ought to be given limited weight or no weight.

8The applicant admits to failing to comply with Rule 9, stating that it was an oversight on her part.

9Rule 9.4 of the Licence Appeal Tribunal Rules allows the Tribunal to consent to the admission of evidence where the applicant has failed to comply with disclosure rules.

10I find that the applicant can rely on Dr. Mai’s report for the following reason:

a. The applicant submitted Dr. Mai’s report with her written submissions to the respondent on September 17, 2024. Following, the respondent was able to make comprehensive submissions in response to the report.

b. The probative value of admitting Dr. Mai’s report in evidence outweighs the prejudicial effect on the respondent. This is because the respondent submitted his response to the report which I have to consider. By accepting Dr. Mai’s report, I have a full record of submissions from the applicant and respondent that enable a complete analysis of the evidence presented. And the likelihood of the respondent having an unfair hearing because of the admission of Dr. Mai’s report in evidence is minimal, as the respondent has reviewed and considered Dr. Mai’s report and made submissions with respect to the evidence within.

11Based upon the foregoing, I have admitted Dr. Mai’s report as part of the applicant’s evidence. And I have attached less weight to the report because of the applicant’s failure to submit the report within the period ordered in the Case Conference Report and Order.

Minor Injury Guideline

12I find that the applicant has met her onus and has established that her accident-related injuries fall outside the definition of a “minor injury,” as set out in s. 3(1) of the Schedule. Specifically, she has demonstrated that she sustained a concussion as a result of the accident.

13Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

14An insured person 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 from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

15In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.

16The applicant submits that she should be removed from the MIG on the ground that she sustained a concussion because of the accident. The applicant relies on the clinical notes and records (“CNRs”) of Dr. Faten Shokry Rabie, (family doctor), dated from July 30, 2021, to October 18, 2022; the reports from Dr. David Mai, (sports medicine physician), dated November 1, 2022, and May 30, 2023; and a report of Dr. Jon Wareham (optometrist), dated January 24, 2023.

17The respondent disagrees, stating that the applicant did not sustain a head injury that would have her sustain a concussion. The respondent relies on the IE reports from Dr. Dale Robinson (neurologist) dated July 4, 2022, and IE report of May 3, 2023, wherein Dr. Robinson concludes that the applicant’s injuries are predominantly minor and could be treated within the MIG.

18Dr. Rabie’s CNRs, dated July 30, 2021, indicate that the applicant sustained the following injuries as a result of the accident: whiplash, confusion, nausea, dizziness, poor memory, and decreased focus. Dr. Rabie prescribed pain and anti-depressant medications. Further, in her note dated August 11, 2022, when referring the applicant to Dr. Mai, she listed the same injuries of the applicant, and added concussion and concussion symptoms.

19The respondent submits that the question mark next to the word “concussion” in Dr. Rabie’s clinical note dated July 30, 2021, is an indicator that the doctor was not convinced that the applicant suffered from a concussion. The respondent asserts that Dr. Rabie did not perform any concussion testing or order diagnostic imaging of the applicant’s head or engaged other concussion related investigations, that would lead to the conclusion that she suffered a concussion.

20I find that Dr. Rabie might not have been convinced that the applicant had concussion on July 30, 2021, however, in the following months, ranging from July 30, 2021, to October 2022, she consistently referred to the applicant as having concussion symptoms and concussion as reflected in her clinical notes and records dated September 2, 2021, October 1, 2021, July 7, 2022, August 9, 2022, and August 11, 2022. This suggests that Dr. Rabie became convinced that the applicant had concussion.

21The respondent further submits that the applicant did not suffer a concussion because she did not hit her head. The respondent relies on the s.44 neurological assessment report dated July 4, 2022, by Dr. Dale Robinson (neurologist) who opined that the applicant did not suffer a concussion, and that her injuries were predominantly minor.

22The applicant submits that the force of the impact of the accident jolted her head forward and back with enough force to cause her hat to fly off her head. She relies on the Brain Injury Canada’s definition of a concussion to assert that she suffered a brain injury. The applicant also relies on the diagnosis found in Dr. Mai’s report dated November 1, 2022. Dr. Mai diagnosed the applicant as suffering from persistent concussion symptoms including headaches, neck pain, nausea, dizziness, difficulty concentrating, confusion, fatigue, sensitivity to light and sound, and irritability. He recommended physiotherapy, occupational therapy, registered massage therapy, and medication. Additionally, the applicant was referred for a neuro-optometrist assessment.

23The respondent submits that Dr. Mai is not qualified to make the assessment and referral because he is not a neurologist and therefore, he cannot make a diagnosis that the applicant had a concussion. I disagree with the respondent. Given that Dr. Robinson is a neurologist, his evidence attracts more weight because of his expertise. However, the respondent does not point me to any authority specifying that a sports medicine specialist who is a physician cannot diagnose concussions. Additionally, I have accepted Dr. Mai’s report in evidence albeit, I gave less weight to the report submitted.

24The applicant was referred to Dr. Jon Wareham (optometrist) for a neuro-optometric assessment. In his report, dated January 24, 2023, Dr. Wareham diagnosed the applicant as presenting with visual diagnoses commonly found in post-traumatic brain injury patients.

25The respondent relies on Dr. Robinson’s second report dated May 5, 2023, wherein he reviewed the reports from Dr. Mai’s and Dr. Wareham. The respondent submits that Dr. Robinson reaffirms his original position that the applicant did not suffer from a concussion, thus, she should remain in the MIG.

26I find that the preponderance of evidence before me indicates the applicant had a concussion and should be removed from the MIG. I am persuaded by Dr. Rabie’s clinical notes and records, because as the applicant’s family doctor she has the applicant’s medical history and she repeatedly reported in her clinical notes and records that the applicant experienced a concussion and concussion symptoms.

27Further, Dr. Mai attended to the applicant on two occasions, dated November 1, 2022, and May 30, 2023. His opinion is based upon the applicant’s self reporting, her family doctors’ clinical notes and report and the opinion of Dr. Wareham. He reviewed the IE report and he disagreed with Dr. Robinson’s opinion stating that the applicant was inadequately treated. He recommended that the applicant continue with therapy and start psychology appointments as soon as possible and medication for the applicant’s ongoing headaches.

28Similar to Dr. Mai, Dr. Robinson (IE) states that his assessment, is based on a thorough review of the available documentation, interview with and examination of the applicant. I note that he did not get the benefit of reviewing Dr. Mai’s report dated May 30, 2025.

29Furthermore, Dr. Wareham opined that many of the visual signs and symptoms associated with concussion are linked to a dysfunction of the oculo vergence system. And the applicant presented with visual diagnoses commonly found in post traumatic brain injury (TBI) patients.

30Based upon the evidence before me, I find that the applicant has proven on a balance of probabilities that she sustained a concussion in the accident and is accordingly removed from the MIG.

31Section 38(2) of the Schedule provides that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3).

32The respondent submits that the neuro-optometric assessment report by Dr. Wareham is barred by s.38.(2) because the treatment plan was submitted after the assessment was incurred.

33The applicant submitted that in a letter dated August 4, 2023, she requested approval for a neuro-ophthalmology evaluation. The respondent denied the request stating that the applicant had sustained minor injuries.

34The applicant submits that based upon the respondent’s position and the fact that the MIG was exhausted, she was of the view that the respondent would deny the OCF-18 for an assessment by a neuro-ophthalmologist. On that basis, she chose to file an appeal with the Licence Appeal Tribunal instead of submitting an OCF-18 to the respondent.

35I find that the applicant incurred the expense for a neuro-ophthalmology assessment by Dr. Wareham before submitting the OCF-18 to the respondent. Consequently, pursuant to s. 38(2), I find that the respondent is not liable to pay for the treatment plan.

ORDER

36The applicant has demonstrated that she sustained a concussion, an injury that is not predominantly minor. As a result, the applicant is not subject to the MIG.

37The applicant is not entitled to the treatment plan in dispute.