Citation: Hudson v. Co-operators General Insurance Company, 2025 ONLAT 23-002153/AABS

Licence Appeal Tribunal File Number: 23-002153/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:

Lloyd George Hudson

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Nathan Prince

APPEARANCES:

For the Applicant: Naresh Misir, Counsel

For the Respondent: Emily Schatzker, Counsel

HEARD: By way of written submissions

OVERVIEW

1Lloyd Hudson, the applicant, was involved in an automobile accident on March 20, 2021, 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:

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

2. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from April 20, 2021, to February 23, 2023?

3. Is the applicant entitled to $3,795.50 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan/OCF-18 (“plan”) dated March 30, 2021?

4. Is the applicant entitled to $2,026.55 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated July 21, 2021?

5. Is the applicant entitled to $1,417.70 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated August 31, 2021?

6. Is the applicant entitled to $1,417.70 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated November 2, 2021?

7. Is the applicant entitled to $1,417.70 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated February 4, 2022?

8. Is the applicant entitled to $2,200.00 for a psychological Assessment, proposed by Scarborough Physio and Rehab Clinic in a treatment plan dated October 29, 2022?

9. Is the applicant entitled to $2,200.00 for chronic pain assessment, proposed by Scarborough Physio and Rehab Clinic in a treatment plan dated June 9, 2022?

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

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

RESULT

3The applicant is not entitled to NEBs.

4The applicant remains in the MIG.

5The applicant is not entitled to the treatment plans in dispute.

6The applicant is not entitled to an award or interest.

PROCEDURAL ISSUES

7On April 24, 2024, the respondent brought a motion seeking to exclude the section 25 chronic pain assessment report of Dr. Antiemo Kessie because it was not filed in accordance with the Case Conference Report and Order (“CCRO”). In the alternative, the respondent sought an order adjourning the original written hearing date to allow it to complete and obtain a responsive section 44 report.

8The respondent was not served with the section 25 chronic pain report until it was provided with the applicant’s written submissions. The applicant submits that he was unaware that a copy of the report had not been provided and was under the impression that the assessment facility had previously given a copy to the respondent.

9By way of an interim order dated March 20, 2025, the Tribunal granted a 75 day adjournment to allow the respondent to obtain a responding report and further allowed the parties to make supplementary submissions based on the report’s findings.

10The respondent was able to obtain a responsive physiatry report dated May 5, 2025 by Dr. Raymond Zabieliauskas and both parties made supplementary submissions in accordance with the March 20, 2025 interim order.

11As the respondent was afforded the opportunity to obtain a responsive report and both parties made submissions regarding this report, I find that there is no prejudice to the respondent in admitting the chronic pain report of Dr. Kessie. Conversely, I find that the applicant would be significantly prejudiced by excluding the section 25 report of Dr. Kessie as it is the very basis upon which he seeks removal from the MIG. While I note that the section 25 report was late-filed and not in compliance with the CCRO, I accept that this was due to inadvertence, and was not an attempt to ambush the respondent. As such, the section 25 report of Dr. Kessie will be relied upon and considered in the analysis below.

ANALYSIS

The applicant is not entitled to NEBs

12I find that the applicant has not demonstrated on a balance of probabilities that he is entitled to NEBs.

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 Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

14The applicant submits that, prior to the accident, he was independent with respect to his activities of daily living, housekeeping, and personal care. He states that he enjoyed an active lifestyle which included going to the gym 3-4 times per week, walking outdoors, spending time with friends, going to “house parties”, and going on recreational drives. Post-MVA, the applicant submits that he is prevented from engaging in self-care activities, grocery shopping, certain housekeeping, and recreational activities.

15The applicant relies on the OCF-3s dated March 26, 2021 and July 8, 2022 completed by Ryan Pagnanelli, chiropractor, and Dr. Joshua Waks, his family doctor, respectively. The OCF-3s indicate that the applicant suffers from multiple sprain and strain injuries to the neck, spine, shoulders, and hips which result in a complete inability to carry on a normal life. I find that these OCF-3s are not persuasive as they are inconsistent with an unsubmitted OCF-3 found in the clinical notes and records (“CNRs”) of Dr. Waks which was completed on January 3, 2022. This OCF-3 indicate that the applicant did not suffer a complete inability to carry on a normal life; however, this OCF-3 was never submitted to the respondent but was included with Dr. Waks’ CNRs. It was not until applicant’s counsel requested a revised OCF-3 that a subsequent OCF-3 was created indicating a complete inability to carry on a normal life. While I acknowledge that the applicant’s condition may fluctuate over time, I nonetheless find that the January 3, 2022 OCF-3 casts significant doubt on the extent of the applicant’s injuries and, when considered along with the other medical evidence discussed below, I find that the applicant does not meet the test for NEBs.

16The applicant further relies on the psychological assessment report of Fahimeh Aghamohseni dated October 29, 2022 and the aforementioned chronic pain report of Dr. Kessie which both conclude that the applicant suffers from a complete inability to carry on a normal life. However, in reviewing these reports, I find that there is insufficient support for a finding that the applicant is entitled to NEBs. Dr. Kessie’s report indicates that the applicant is still able to perform many of his activities of daily living including bathing/showering, toileting, grooming and personal hygiene, dressing, eating, and feeding functions, albeit with reduced pace and frequency. Similarly, the applicant reported to Dr. Kessie that he attempts to complete cleaning, housework, laundry, and shopping activities; however, he does so at a decreased frequency and not as thoroughly. Similarly, Dr. Aghamohseni’s report indicates that the applicant experiences difficulty with household and personal care, but he is still able to complete it. Based on the applicant’s own reports to his assessors, I find that he does not suffer from an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.

17Further support for the applicant’s ability to complete his activities of daily living can be found in the September 22, 2022 section 44 physiatry report of Dr. Raymond Zabieliauskas, wherein the applicant reported that he was independent in his personal toileting and showering and was able to do his own cooking and cleaning as well as his laundry. I find this reporting to be reliable as it is consistent with the CNRs of Dr. Waks. For example, on January 31, 2022, the applicant reported to Dr. Waks that he had difficulty with daily activities within the first four months post-accident; however, he gradually got better and was able to resume normal activities.

18Finally, the applicant submits that he no longer participates in leisure activities including going to the gym; however, this assertion is incongruent with the medical record. The applicant’s family doctor referred him to a physiatrist, Dr. Meiqi Guo, for a consultation which took place on April 19, 2023. During this consultation, the applicant indicated that he was not experiencing any pain or weakness and continued to go to the gym. Moreover, during his assessment with Dr. Aghamohseni, the applicant stated that “I have severe pain sometimes, but I try and be active by going to the gym to help with pain.”

19Based on the totality of the medical evidence, I find that the applicant does not suffer from a complete inability to carry on a normal life and is therefore not entitled to NEBs.

The applicant remains in the MIG

20I find the applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

21Section 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.”

22An 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.

23The applicant submits that he should be removed from the MIG based on chronic pain, psychological injuries, and his pre-existing conditions. He again relies on the reports of Dr. Kessie and Dr. Aghamohseni as well as the CNRs of Dr. Waks.

24The respondent submits that the applicant has not met his onus of demonstrating that he should be removed from the MIG and relies on the section 44 reports of Dr. Zabieliauskas and Dr. Ricardo Harris, psychologist.

25For the reasons that follow, I find that the applicant has not demonstrated that his impairments warrant removal from the MIG.

The applicant has not demonstrated that he has a pre-existing condition that will prevent maximal recovery within the MIG

26I find that the applicant has not established that he should be removed from the MIG on the basis of his pre-existing conditions.

27As set out above, under section 18(2) of the Schedule, the applicant must show, on a balance of probabilities, that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if he is kept within the confines of the MIG.

28The applicant submits that he has an extensive history of pre-existing conditions including osteoarthritis, knee pain, high blood pressure, and chest pain and I find that these conditions are borne out in the medical record. However, the existence of pre-existing conditions is only the first part of the test. There must also be compelling medical evidence that these pre-existing conditions are precluding the applicant from recovery within the MIG.

29Dr. Kessie notes in his report that barriers to recovery for the applicant would include his pre-existing diagnoses of osteoarthritis; however, he does not offer any explanation as to why this is so. I find that although Dr. Kessie notes that the applicant’s pre-existing osteoarthritis would be a barrier to recovery, without any further details, his assertion does not rise to the level of compelling medical evidence required by section 18(2) for removal from the MIG on this ground.

30Outside of Dr. Kessie’s comment, the applicant has not pointed me to any other medical evidence which would suggest that his pre-existing conditions are posing a barrier to his recovery within the MIG. Therefore, I find that the applicant has not met his onus of demonstrating that his pre-existing conditions warrant removal from the MIG.

The applicant has not demonstrated that he suffers from a psychological impairment

31I find that the applicant has not demonstrated on a balance of probabilities that he suffers from a psychological impairment as a result of the accident.

32As set out above, an injured person is not subject to the MIG if they can show that they have a psychological injury as a result of the accident. However, the psychological injury must be more than sequalae of the minor injury. If the symptoms are sequelae and do not rise to the level of impairment, they are captured in the minor injury definition.

33The applicant relies on Dr. Aghamohseni’s report in which she diagnosed the applicant with the following:

1. Major Depressive Disorder, Single Episode, severe range, with anxious distress
2. Somatic Symptom Disorder, with predominant pain, in the persistent range, at severe levels
3. Specific Phobia, situational type, vehicular

34Dr. Aghamohseni’s findings are based on her clinical interview with the applicant as well as a battery of psychological tests including the Beck Depression Inventory, Beck Anxiety Inventory, Pain Patient Profile, Symptom Checklist 90-R. and Davidson Trauma Scale.

35The respondent relies on the section 44 psychological assessment report of Dr. Ricardo Harris, dated October 18, 2022, in which he found there to be evidence of malingering. Dr. Harris administered the following tests: Structured Inventory of Malingered Symptomatology (“SIMS”), Beck Anxiety Inventory, Beck Depression Inventory II, Brief Pain Inventory (Short Form), and PTSD Checklist for DSM-5 (PCL-5).

36The SIMS is a screening tool for the detection of feigned or exaggerated psychiatric disturbance and cognitive dysfunction and has a demonstrated efficiency rating of 94.96% at identifying malingering. The applicant’s score on the SIMS was significantly elevated above the recommended cut-off score for the identification of suspected malingering. The cut-off for malingering is a score of 14, and the applicant’s total score was 27 – almost twice above the cut-off. Based on this score, Dr. Harris opined that the only diagnosis that the applicant would qualify for is V65.2 (Z76.5) Malingering and that the applicant did not suffer from any accident-related psychological impairments.

37The applicant submits that Dr. Aghamohseni tested the applicant for validity as her report notes that the applicant was “clearly coherent, and he did not endorse rare, absurd, or improbable items put to him to engage the integrity of this report. He also did not over-endorse items. His complaints were limited to a single diagnostic focus and not to a broad range of pathology, which usually occurs when individuals attempt to deliberately exaggerate their condition.”

38While I appreciate that Dr. Aghamohseni did not have any reason to believe that the applicant was malingering, with respect, I place more weight on the formal validity testing conducted by Dr. Harris given the SIMS’ high efficiency rating at identifying malingering.

39Furthermore, I find that Dr. Harris’ conclusion that the applicant does not suffer from any accident-related psychological impairments is supported by the CNRs of Dr. Waks. I was not pointed to any record in Dr. Waks’ CNRs which indicate that the applicant reported depression, anxiety, or any other psychological condition to his family doctor.

40Based on the foregoing, I find that the applicant has not demonstrated on a balance of probabilities that he suffers from a psychological impairment that would warrant removal from the MIG.

The applicant has not demonstrated that he suffers from chronic pain with a functional impairment

41I find the applicant has not demonstrated on a balance of probabilities that he suffers from chronic pain with a functional impairment that would warrant removal from the MIG.

42The applicant submits that he suffers from chronic pain as a result of the accident and relies on the report of Dr. Kessie which diagnosed him with chronic pain syndrome. Dr. Kessie’s diagnosis relies on a finding that the applicant meets four of the six diagnostic criteria for chronic pain syndrome as outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”).

43The AMA Guides list six criteria for assessing chronic pain claims. I am not bound by the AMA Guides; however, the Tribunal has held that the AMA Guides can be a useful tool for the evaluation of chronic pain. To support a diagnosis of chronic pain under the AMA Guides, the applicant must meet at least three of the following six criteria:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances. ii. Excessive dependence on health care providers, spouse, or family. iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain. iv. Withdrawal from social milieu, including work, recreation, or other social contracts. v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs. vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

44I am not persuaded by Dr. Kessie’s finding that the applicant meets the test under criteria III, IV, V, and VI. While I acknowledge that Dr. Kessie has concluded that the applicant meets these criteria in his report, he does not offer any explanation or discussion on how he came to this conclusion. In the absence of any details as to why the applicant meets these criteria, I put little weight on Dr. Kessie’s report.

45Furthermore, Dr. Kessie’s report is inconsistent with the applicant’s self-reporting to other medical practitioners. For example, on May 26, 2021, the applicant reported to Dr. Waks that his pain had gone away, and a few months before Dr. Kessie’s assessment, the applicant reported to Dr. Guo that he was not experiencing pain.

46Moreover, I was not pointed to any evidence in the CNRs of Dr. Waks which would support a diagnosis of chronic pain syndrome. While there are numerous visits to Dr. Waks in the years after the accident, the CNRs largely discuss unrelated issues. The applicant points me to several diagnostic imaging reports dated August 8, 2023; however, I find that these do not assist the applicant in demonstrating that he suffers from accident-related pain. For example, in his referral to Mount Sinai Hospital, Dr. Waks indicates that the applicant has been suffering from back pain “for several months” which, I find, suggests that his alleged pain is not accident-related. In addition, the findings from these diagnostic imaging tests indicates that there are “degenerative changes” in the spine, sacroiliac joints, and hips. None of the diagnostic imaging reports suggest that the applicant suffers from any accident-related injuries and therefore I find that these reports do not assist the applicant in demonstrating that he meets the criteria outlined in the AMA Guides.

47In any event, even if I were to accept the presence of chronic pain, in order to take the applicant out of the MIG, it must be accompanied by a sufficient level of functional impairment which I find has not been made out in this case. Dr. Kessie’s report indicates that the applicant continues to be able to perform many of his activities of daily living independently, albeit with some pain aggravation. This finding aligns with the applicant’s reporting to his family doctor on January 31, 2022 where he reported that he had difficulty with daily activities for the first four months post-accident, but then gradually got better and was able to resume normal activities. Moreover, the applicant reported to Dr. Zabieliauskas that he was independent in his personal toileting and showering and was able to do his own cooking and cleaning as well as his laundry.

48As such, I find on a balance of probabilities, that the applicant does not suffer from chronic pain with a functional impairment sufficient to warrant removal from the MIG.

The applicant is not entitled to the plans in dispute

49As I have found the applicant to remain in the MIG, and the MIG limits have been exhausted, it is not necessary to consider whether the plans in dispute are reasonable and necessary.

Interest

50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

51As there are no overdue payments of benefits, the applicant is not entitled to interest.

Award

52The 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.

53As I have found that the applicant is not entitled to any of the benefits in dispute, and there is no evidence of any other benefits being unreasonably denied or delayed, there is no basis for an award under s. 10 of Reg. 664.

ORDER

54For the reasons outlined above, I find:

1. The applicant is not entitled to NEBs;
2. The applicant remains in the MIG;
3. The applicant is not entitled to the treatment plans in dispute;
4. The applicant is not entitled to an award or interest; and
5. The application is dismissed.