Licence Appeal Tribunal File Number: 23-011808/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:
Co-operators General Insurance Company
Applicant
And
Raven Jorge
Respondent
DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
For the Applicant: Emily Schatzker, Counsel
For the Respondent: Matthew D Reid, Counsel
HEARD: By way of written submissions
OVERVIEW
1Raven Jorge, the respondent, was involved in an automobile accident on December 11, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The respondent was denied various benefits by the applicant, Co-operators General Insurance Company. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) seeking repayment of past monies paid to the respondent for an income replacement benefit (“IRB”).
ISSUES
2The issues in dispute are:
Is the applicant entitled to repayment of the income replacement benefits paid to the respondent (“IRBs”) from January 18, 2022, to March 23, 2023 in the amount of $26,062.28?
Are the respondent’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”)?
Is the respondent entitled to $1,428.48 for chiropractic services, proposed by Athletes Care in a treatment plan/OCF-18 (“plan”) dated September 18, 2022?
Is the respondent entitled to $1,250.00 for optometric services, proposed by Kingsway Eye Care in a treatment plan dated November 11, 2022?
Is the respondent entitled to $2,460.00 for a psychological assessment, proposed by Dr. Nadia Brown in a treatment plan dated June 6, 2023?
Is the respondent entitled $1,382.84 for accounting fees proposed by Davis Martindale in an invoice dated July 26, 2023?
Is the respondent liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the respondent?
Is the respondent entitled to interest on any overdue payment of benefits?
3Although the MIG was not set out in the Tribunal’s case conference report and order (“order”) as an issue in dispute, both parties’ submissions addressed the issue as being in dispute. Therefore, I will be addressing the issue in this decision.
RESULT
4After considering the parties’ submissions and evidence, I order as follows:
The applicant is entitled to repayment of IRBs in the amount of $907.54 plus interest.
The respondent’s injuries do not fit within the MIG.
The respondent is entitled to:
i. $1,382.84 for accounting fees proposed by Davis Martindale in an invoice dated July 26, 2023.
ii. $1,250.00 for optometric services, proposed by Kingsway Eye Care in an OCF-18 dated November 11, 2022.
- The respondent is not entitled to:
i. $2,460.00 for a psychological assessment, proposed by Dr. Nadia Brown in an OCF-18 dated June 6, 2023.
ii. $1,428.48 for chiropractic services, proposed by Athletes Care in an OCF-18 dated September 18, 2022?
The applicant is not liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the respondent.
The respondent is entitled to interest on the OCF-18s I have determined to be reasonable and necessary.
PROCEDURAL ISSUES
5The applicant opposed the respondent’s reliance on an affidavit on the basis that the Tribunal’s order noted that the parties agreed that no affidavits would be relied upon. Nor did the respondent bring a motion in advance of the hearing seeking the Tribunal’s permission to rely upon same. The applicant submits that it will be prejudiced if I accept the respondent’s affidavit evidence because it was not given the opportunity to cross-examine her on this evidence. Finally, it maintains that only the parts that support the respondent’s submissions should be struck from the record.
6The respondent’s affidavit (and both parties’ submissions regarding same) are struck as evidence in this hearing because the Tribunal’s order stated that the parties agreed that no affidavits would be relied upon. I find that it would be procedurally unfair to the applicant if I considered this evidence. In my view, the respondent should have sought the Tribunal’s permission in advance of the hearing to rely on this evidence and provide the applicant with the opportunity to cross-examine her on the affidavit. I also note that although an affidavit is referred to in the respondent’s submissions, it was not included as part of her document brief. However, out of fairness to both parties, I will not be considering any submissions regarding it from either party.
ANALYSIS
The applicant is entitled to repayment of past IRBs paid from January 18, 2022 to March 23, 2023 in the amount of $907.54.
7Section 7(3) of the Schedule provides that an insurer may deduct any post-accident income received by an insured person from any IRBs payable.
8Section 52(1)(a) of the Schedule provides that an insured person is liable to repay an insurer any benefit that is paid to the person as a result of an error on the part of the insurer, the insured person, or any other person, or as a result of wilful misrepresentation or fraud.
9Section 52(2) of the Schedule provides that the insurer must give the insured notice of the amount that is required to be repaid. Section 52(3) limits an insured’s liability to repay an amount if notice is not given within 12 months after the payment of the amount that is to be repaid, unless the overpayment is due to wilful misrepresentation or fraud.
Was the overpayment due to wilful misrepresentation?
10I find the overpayment was not as a result of wilful misrepresentation or fraud.
11The Tribunal has defined wilful misrepresentation as any manifestation by words or other conduct by one person to another that, under the circumstances, amount to an assertion not in accordance with the facts.” The Tribunal has also held that “silence or a failure to report” can constitute wilful misrepresentation. It is the applicant’s onus to prove that the respondent wilfully misrepresented her employment status.
12The applicant submits that it is entitled to repayment of the IRB because the respondent was paid an IRB due to wilful misrepresentation because she knew or ought to have known that she had an obligation to report all post-accident income earned to the applicant. It submits that the respondent did not report income received from her singing career post-accident or the income she received while working at a spa. It relies on a surveillance report, insurer examination (“IE”) report of Dr. Angel, neurologist, Tik Tok videos and other social media to support its position.
13The respondent argues that there was no wilful misrepresentation with respect to her failure to report her post-accident employment and income earned to the applicant. She submits that her singing career is a hobby and not a career. Further, she did not purposely conceal that she was working for the spa because she reported it to Dr. Angel. She also submits that her employment at the spa was temporary.
14I find the overpayment was not due to wilful misrepresentation for the following reasons.
15First, I do not find the surveillance report and social media evidence relied upon by the applicant supports that the respondent earned any money because of her singing career. For example, there is no evidence to establish that she made money from the four songs posted on Spotify post-accident. Further, the surveillance video supports that she attended a bar on a few occasions and sang two songs with the house band (that she is not a member of). While the respondent may have ambition to build a singing career, I was not provided with any persuasive evidence that this is regular employment or that she has made any money as a result. I find the applicant is asking the Tribunal to speculate about the respondent’s post-accident employment activities through her social media. I find this is insufficient evidence to establish that the respondent has earned post-accident income as a singer or willfully misrepresented her employment.
16Second, I find that the respondent did not purposely hide the fact that she had been working temporarily at a spa because she reported it directly to Dr. Angel who was assessing whether she was entitled to an IRB. In my view, I find the respondent’s reports to the IE assessor support that she was being forthright instead of deliberately trying to conceal this fact from the applicant. Further, the temporary nature of the respondent’s employment with the spa was confirmed by a T4 and pay stubs which establish that the respondent worked there from December 31, 2022 to January 27, 2023. While I acknowledge that the respondent had an obligation to report her post-accident income, and that there was a delay in reporting it, based on the facts before me I do not find that she willfully misrepresented this employment at the spa to the applicant.
17Third, I find that both disability certificates (“OCF-3”) dated January 18, 2022 and August 16, 2022 submitted to the applicant indicated that the respondent could return to work on modified duties. The August 2022 OCF-3 noted under additional comments that “flexibility with work for when her pain and nausea come on. Patient still photophobic…gradual return to work.” Consequently, I find the respondent was not trying to mislead the applicant about her inability to work. In addition, I find the fact that the OCF-3s contained an error regarding the last day the applicant worked by four days does not amount to wilful misrepresentation because they both support that the respondent could work on modified duties and that she attempted to.
18Fourth, the respondent reported her income from Monat Global from 2022, which supports that she was upfront about this employment. For all these reasons, I find there is insufficient evidence before me to conclude that she wilfully misrepresented her employment.
19Finally, I find the case law relied on by the applicant distinguishable from the present case. For example, in Certas v. T.T., 2017 CanLII 87539 (ONLAT) the adjudicator did not have any submissions or evidence filed on behalf of the insured person and the insured reported to the IE assessors that they had not returned to work. In Zabarain v. Coseco Insurance Company, 2021 CanLII 86459 (ON LAT), the adjudicator determined that the insured went back to their pre-accident employment full time and drew an adverse inference from the insured’s failure to produce the employment file or tax records. In Security National Insurance Company v. Thomas, 2024 CanLII 2632 (ON LAT), the insured’s post-accident tax returns supported that they had returned to work the entire time they were receiving an IRB. This evidence is not before me.
20For the above-noted reasons, I find the applicant has not proven on a balance of probabilities that any overpayment of past IRBs was as a result of wilful misrepresentation.
Timely notice and Quantum of Repayment
21As highlighted above, s. 52(3) of the Schedule provides that an insurer is not entitled to repayment if notice was not provided within 12 months of the amount that is to be repaid.
22It is undisputed that the applicant provided notice to the respondent of the request for repayment on June 7, 2023.
23The applicant submits that if I determine that there was no willful misrepresentation, it is still entitled to repayment because it provided notice within 12 months of discovering that there had been an overpayment. In addition, it did not discover the respondent’s employment from the spa until after the 12-month notice period. It maintains that it is entitled to repayment for all benefits paid in the 12 months prior to it requesting repayment, which in this case is from June 7, 2022 until March 23, 2023 (41 weeks and two days), in the amount of $16,514.29.
24The respondent submits that she is not liable to repay past IRBs because she was entitled to notice within 12 months of the first alleged payment error. Since the applicant claims that the first error occurred on January 18, 2022, she submits that the deadline for the applicant to provide notice was January 18, 2023.
25I reject the respondent’s interpretation of s. 52(3) of the Schedule because I find this section clear that the insurer has 12 months after the overpayment was made to request repayment. In this case, the respondent was paid an IRB from January 18, 2022 to March 23, 2023. Further, notice was provided on June 7, 2023. As a result, I find the applicant is entitled to seek repayment dating back to June 7, 2022.
Quantum of repayment
26I find that the applicant has not met its burden in establishing the quantum of IRBs that it is seeking repayment of because it did not submit any evidence in support of same. The basis for the applicant’s request for repayment was that the respondent willfully represented her post-accident employment. As a result, it argues it is entitled to be repaid for all past IRBs paid to date. However, the accounting report dated July 26, 2023, relied upon by the respondent, calculated the past IRBs paid to date, less 70% of post-accident income earned, which established that the applicant had overpaid the respondent an IRB in the amount of $907.54. I find the accountant had the income tax records from 2022 on which to base the applicant’s income loss from Molly Maid, except for the T4 from the spa from January 2023, which the respondent would not have had access to. The accountant also had information pertaining to the income earned by the respondent from Monat Global. As a result, I find the applicant’s argument that it did not have the respondent’s income tax records for 2022 was not supported. Moreover, I find the respondent did not meet its onus in proving the quantum of repayment because it did not submit any evidence to support its calculations.
27I find the applicant is entitled to repayment in the amount of $907.54 as per the respondent’s accounting report. Neither party provided the calculations for the post-accident income received by the applicant from the spa in January 2023. I find that the applicant has not met its onus in establishing the quantum for repayment for this time period.
The respondent’s accident-related impairments do not fit within the MIG.
28Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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.”
29An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The respondent in this case bears the onus of proving on balance of probabilities that her accident-related impairments fall outside of the MIG.
30The respondent submits that she should be removed from the MIG because she sustained a concussion and a psychological impairment as a result of the accident. She relies on the clinical notes and records (“CNRs”) of her family doctor who diagnosed her with a concussion and report of Dr. Brown, general practitioner, who diagnosed her with various psychological impairments as a result of the accident.
31The applicant argues that the respondent’s accident-related impairments fall within the MIG. It relies on the above-noted IE report of Dr. Angel who determined that the respondent did not sustain a concussion as a result of the accident. It maintains that I should prefer the opinion and report of the IE assessor over the family doctor’s CNRs because they were based on the respondent’s self-reports which are not reliable.
Concussion
32I find that the respondent sustained a concussion as a result of the accident which removes her from the MIG.
33I prefer the CNRs of the respondent’s family doctor over the report of Dr. Angel because she visited her family doctor shortly following the accident whereas Dr. Angel’s IE took place on January 27, 2023 (almost two-years post-accident). I find the timing important because the respondent reported symptoms consistent with a concussion to her family doctor. For example, a CNR dated December 16, 2021 notes “constant headache, nausea, photophobia, eye ache and neck pain.” Further, she continued to visit her family doctor with concussion related complaints until July 2022. As a result, I accept the family doctor’s diagnosis that the respondent sustained a concussion. Although I acknowledge that a neurologist has expertise in assessing brain injuries and concussions, I find the family doctor is also qualified to render this diagnosis based on the applicant’s symptoms.
34Since I have determined that the respondent sustained a concussion as a result of the accident, this diagnosis falls outside of the s. 3 definition, which removes her from the MIG. Therefore, I need not address whether she is removed from the MIG as a result of a psychological impairment.
Accounting Report
35The respondent is entitled to $1,382.84 for accounting fees proposed by Davis Martindale in an invoice dated July 26, 2023.
36Section 7(4) of the Schedule provides that the insurer shall pay an expense incurred by or on behalf of an insured person for the preparation of a report for the purpose of calculating a person’s income from employment or self-employment if all of the following three conditions are satisfied:
The insured person is applying for an income replacement benefit that is based on the employment or self-employment considered in the report.
The report is prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004.
The expense is reasonable and necessary for the purpose of determining the insured person’s entitlement to an income replacement benefit.
37The applicant argues that the accounting report is not reasonable and necessary because as of the date the report was submitted it had not yet received the respondent’s income tax returns for 2022. Further, it was obtained after IRBs were terminated following its repayment request. It submits that although the accounting report accounts for her Monat income, it assumed that she was unable to work beyond December 23, 2022, which is contrary to the paystubs of the spa indicating pay periods from December 31, 2022 to January 27, 2023. The applicant relies on the Tribunal’s decision in MG v. Intact Insurance Company, 2020 CanLII 34445 (ON LAT) where the adjudicator determined that where an IRB calculation is straight forward, the commissioning of an accounting report is not reasonable and necessary. It submits that the IRB calculation in this matter is not complex and relies on IRB quantum correspondence where it adjusted the respondent’s weekly IRB entitlement for the period during which she received the Monat income.
38I find the accounting report is reasonable and necessary. In addition, I find the decision in MG v. Intact distinguishable because in this case, I have no competing accounting report or evidence to support that the calculation of repayment was not complex. The applicant referred to IRB quantum correspondence, however, did not submit it as evidence for this hearing or explain how it supports that the IRB calculations were straightforward. Further, the accounting report relied on by the respondent was the only evidence which assisted the Tribunal in determining the quantum of repayment. Consequently, an accounting report was reasonable and necessary to determine what IRBs were payable for the time-period in dispute along with deductions for post-accident income to determine whether there was an overpayment.
OCF-18s in Dispute
39Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary. To do so, the respondent should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. The Tribunal has also determined that treatment is reasonable and necessary if it results in the temporary relief of pain.
40Section 25(1) of the Schedule provides that an insurer shall pay for reasonable fees to complete an assessment. Section 25(5)(a) limits the cost of any one assessment or examination to $2,000.00. In this case, the respondent bears the onus of proving on a balance of probabilities that assessment is reasonable and necessary. The jurisprudence supports that to prove that an assessment is reasonable and necessary the respondent must have evidence that she has an accident-related impairment which the assessment is meant to address.
OCF-18 for Oculo-visual Assessment
41I find the respondent is entitled to $1,250.00 for the oculo-visual assessment, proposed by Kingsway Eye Care in an OCF-18 dated November 11, 2022.
42The OCF-18 was prepared by Kimberley Nguyen, optometrist, and recommended a functional oculo-visual assessment to address the respondent’s symptoms of photophobia and eyestrain. The goal of the OCF-18 was to reduce visual symptoms post-mva. The respondent argues that the OCF-18 is reasonable and necessary because the respondent’s problems with vision are documented in the family doctor’s CNRs.
43The applicant denied the OCF-18 on the basis that the MIG applied, and the $3,500.00 policy limit was exhausted. Further, the applicant submits that there were no supporting contemporaneous medical records to support that the OCF-18 is reasonable and necessary. It also maintains that surveillance evidence shows the respondent participating in noise-inducing activities such as producing music which undermines her post-concussive complaints.
44I find the OCF-18 in the amount of $1,250.00 for the oculo-visual assessment to be reasonable and necessary because I find the respondent sustained a concussion as a result of the accident and has experienced ongoing problems with vision post-accident. Further, I find the respondent consistently reported issues with vision post-accident to her family doctor which is reflected in the CNRs. Contrary to the applicant’s argument I find that there are contemporaneous medical records which support same. I also find the goal of the OCF-18 to carry out an oculo-visual assessment for the purpose of making recommendations to reduce the post-accident visual symptoms to be reasonable.
45For these reasons, I find the respondent has met her onus in proving on a balance of probabilities that the OCF-18 for an oculo-visual assessment is reasonable and necessary.
OCF-18 for Psychological Assessment
46The respondent is not entitled to the OCF-18 in the amount of $2,460.00 for a psychological assessment.
47The respondent relies on the psychological report of Dr. Brown, general practitioner, in support of her position that the psychological assessment is reasonable and necessary. Dr. Brown diagnosed the respondent with adjustment disorder with mixed anxiety and depressed mood, specific phobia (vehicular), and somatic symptom disorder with predominant pain.
48The applicant submits that the OCF-18 for the psychological assessment is not reasonable and necessary because the respondent did not report any psychological complaints to any health practitioner prior to the OCF-18 being submitted. I agree.
49I find there is insufficient medical evidence before me to establish that the OCF-18 seeking a psychological assessment is reasonable and necessary. For example, the respondent did not report any psychological symptoms to her family doctor despite regular visits. Further, Dr. Brown did not review any medical records in completing the assessment or rendering the diagnosis. Nor do I find that it is within a general practitioner’s scope of practice to render a psychological diagnosis. For these reasons, I have given Dr. Brown’s report and psychological diagnosis little weight.
50I conclude that the respondent has not proven on a balance of probabilities that the OCF-18 for a psychological assessment is reasonable and necessary.
OCF-18 for Chiropractic Treatment
51The respondent is not entitled to the OCF-18 for chiropractic treatment in the amount of $1,428.48 for chiropractic services, proposed by Athletes Care
52The OCF-18 for chiropractic treatment was dated April 11, 2022, and was prepared by Vander Doelen, chiropractor, and recommended eight sessions of chiropractic treatment and eight sessions for massage for a total cost of $1428.28. The goal of the OCF-18 was pain reduction, increase strength and range of motion. The applicant denied the OCF-18 on September 30, 2022, on the basis that the MIG applied.
53The respondent submits that the OCF-18 for chiropractic treatment is reasonable and necessary because her family doctor’s CNRs support that she was experiencing pain in her shoulder, neck, and base of her skull on May 20, 2022, approximately two months prior to the submission of the OCF-18.
54I find the respondent has not established entitlement to this OCF-18 for chiropractic treatment and massage therapy because there was little objective evidence to support it. A CNR of the respondent’s family doctor noted that the range of motion of her neck was normal as of July 28, 2022. Further, the respondent did not identify how the goals of the OCF-18 would be met or that the overall cost of achieving them are reasonable. Nor did the respondent submit evidence to support that past chiropractic treatment or massage therapy has resulted in decreased pain and improvement in function or that she received any benefit from past treatment received to date.
55I conclude that the respondent has not met her onus in proving on a balance of probabilities that the OCF-18 for chiropractic treatment is reasonable and necessary.
Interest
56Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The respondent is entitled to interest on the OCF-18s I have determined to be reasonable and necessary.
57The applicant is entitled to interest on overpayment of IRBs as per s.52(5) of the Schedule as the notice advised the respondent of its intent to claim interest in its notice dated June 7, 2022.
Award
58The respondent is not entitled to an award.
59The respondent 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. The respondent submits that the applicant unreasonably withheld or denied payment for all the OCF-18s in dispute and seeks an award of 50% of the denied amounts plus interest.
60The respondent did not meet her onus in proving that an award is warranted in this case. It is well established law that the threshold for an award is high. Simply stating that the applicant unreasonably withheld and denied all benefits in dispute without further submissions is insufficient for me to conclude that an award should be considered in this case.
ORDER
61For the above-noted reasons, I order:
The applicant is entitled to repayment of IRBs in the amount of $907.54 plus interest.
The respondent’s injuries do not fit within the MIG.
The respondent is entitled to:
a) $1,382.84 for accounting fees proposed by Davis Martindale in an invoice dated July 26, 2023.
b) $1,250.00 for optometric services, proposed by Kingsway Eye Care in an OCF-18 dated November 11, 2022.
- The respondent is not entitled to:
a) $2,460.00 for a psychological assessment, proposed by Dr. Nadia Brown in an OCF-18 dated June 6, 2023.
b) $1,428.48 for chiropractic services, proposed by Athletes Care in an OCF-18 dated September 18, 2022?
The applicant is not liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the respondent.
The respondent is entitled to interest on the OCF-18s I have determined to be reasonable and necessary.
Released: July 21, 2025
Rebecca Hines
Adjudicator