Turner v. Co-operators General Insurance Company, 2025 CanLII 99919

Citation: Turner v. Co-operators General Insurance Company, 2025 ONLAT 24-005701/AABS

Licence Appeal Tribunal File Number: 24-005701/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:

Shari Turner

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Nick de Koning, Counsel

For the Respondent: Ankita Abraham, Counsel

Heard by Videoconference: March 24-26, 2025

OVERVIEW

1Shari Turner, the applicant, was involved in an automobile accident on September 29, 2020, 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, Insurer, 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. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 7, 2020, and ongoing?

ii. Is the applicant entitled to $4,050.09 for physiotherapy services, proposed by Korrective Healing in a treatment plan/OCF-18 submitted on November 17, 2022?

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

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

RESULT

3The applicant is entitled an IRB of $6,758.41covering the period from May 1, 2021 to September 28, 2022.

4The applicant is entitled an IRB of $4,427.70 covering the period from September 29, 2022 to December 31, 2022.

5The applicant is entitled an IRB of $16,731.00 covering the period from January 1, 2023 to December 31, 2023.

6She is not entitled to the treatment plan.

7She is entitled to interest.

8The respondent is not liable to pay an award.

PROCEDURAL ISSUES

9The applicant sought to enter a document issued by the Cambridge Memorial Hospital related to trigger point injections near the end of the hearing. The applicant requested this document in February, 2025 but did not receive it until March 21, 2025 which is one business day before the hearing. She submits that the probative value of the document outweighs any procedural unfairness. The respondent objected to the late admission of this document into evidence because the majority of the hearing was completed and it did not have an opportunity to review the document and ask questions about it to the applicant. In reply, the applicant acknowledged that she overlooked this document at the start of the hearing.

10I agreed with the respondent. The document was prejudicial because the opportunity to review and test this evidence through witness testimony had passed as the applicant sought to enter this document near the end of the hearing. There was no remedial action that could be taken at this late stage to mitigate the unfairness, and as such, the applicant’s request to admit the Cambridge Memorial Hospital record into evidence was denied.

ANALYSIS

Pre-104 Income replacement benefit (IRB)

11I find that the applicant is entitled to a pre-104 IRB.

12To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

13The applicant was the morning shift manager at a McDonald’s restaurant at the time of the accident. Her work description, attached to the Employer’s Confirmation Form (OCF-2), lists numerous duties, including:

• Manages opening, mid and closing shifts;

• Controls labour, waste, cash and yields;

• Enforces appropriate personnel policies, labour laws, security and safety procedures;

• Manages customer complaints;

• Supervises deliveries;

• Trains new personnel;

• Reviews crew/individual performance;

• Completes daily paperwork, such as inventories, cash sheets, drawer counts, and deposits.

14The applicant managed the drive through and in-door service. She testified that her work environment was fast paced. A large number of customers had to be served in a short period of time. This required her to wear a headset to monitor operations and give direction to the people on her crew. She also had to view 10 screens to ensure that the breakfast service was being completed in an efficient fashion. The applicant further testified that if she was short-staffed, then she would have to serve customers and work as a manager at the same time.

15The applicant had migraines before the accident, but these were controllable and she rarely missed work. She returned to work after the accident, but over time her migraines became worse. She testified that the severity of the migraines became so bad that she was no longer meet the performance standards of her position. Her last day of work was April 30, 2021. She has not worked since.

16The applicant submits that that her accident related headaches prevented her from being able to fulfill her duties as a food service manager and that she is entitled to a pre-104 IRB from May 1, 2021 to September 29, 2022.

17The respondent submits that the applicant is not entitled to a pre-104 IRB because she could have continued working with some modifications. The respondent also argues that the cause of the applicant’s headaches were not entirely accident related as she overused medication and this non-accident related factor worsened her migraines and prevented her from working.

18The Neurological Insurer Examination report dated August 11, 2022 by Dr. Desai, neurologist, states that the applicant likely sustained a whiplash type injury of the cervical spine that significantly worsened her pre-existing episodic migraines. He further opines that the applicant’s headaches are also caused by the overuse of medication. Additionally, Dr. Desai found that the applicant can work if she uses noise canceling headphones or ear buds to mitigate her noise sensitivity and blue light blocking lenses to lessen her photosensitivity, along with headache prophylaxis, to reduce headache frequency.

19The applicant was examined by Dr. Desai on July 26, 2022. This was three months after she stopped working. Even without the stress and pressure of work, the applicant reported experiencing daily migraines that last from four hours to the entire day. The intensity of the headaches was causing her to experience nausea and vomiting.

20Dr. Desai testified that the December 17, 2021 clinical note of Dr. Ball, family doctor, and the fact that the applicant communicated well and was not vomiting during the assessment persuaded him that her migraines are not happening continuously and that she can work with some accommodations in place.

21The clinical notes referenced by Dr. Desai state the following:

December 17, 2021- She is feeling better with less migraines during the day on the amitriptyline. She is still waking up with migraines,

November 10, 2021- Ongoing right sided tinnitus. No change with amitriptyline.

June 16, 2021- Shari continues to have trouble with her migraines.

May 4, 2021- Migraines, improving since starting propranolol, now only happening 3x in a week.

April 25, 2021- Is now having worsening migraine and comes in with a migraine.

March 22, 2021- Daily migraines despite amitriptyline

22The December 17, 2021 note shows that she started feeling better with less migraines after taking amitriptyline for nine months. Dr. Desai’s report also references a treatment plan dated June 10, 2022 by Dr. John Kreeft. This is the only document cited by Dr. Desai which speaks to the applicant’s use of amitriptyline after she stopped working. The plan states, “ She has failed on propranolol and on amitriptyline” and recommends Botox treatment.

23Dr. Desai’s opinion, that the applicant can continue working in the fast paced and noisy work environment of a McDonald’s morning shift manager, is based on her successful use of amitriptyline and his suggested work modifications of a noise cancelling headset, blue light blocking lenses, and treatment with headache prophylaxis. While the amitriptyline did seem to help in December, 2021, it did not prevent the applicant from waking up with migraines. There is also one source of information, Dr. Kreeft, which shows that the benefits of amitriptyline were short-lived and no longer effective by June, 2022. This is consistent with the applicant’s testimony that she was no longer able to function at her job by the time she left work on April 30, 2022. The noise cancelling headphones and blue blocking lenses would have been helpful, but not enough to prevent the debilitating headaches as these headaches continued even after she stopped working. Headache prophylaxis, which had not yet been initiated, could improve her ability to work but there is no evidence showing that the results are instantaneous. In my view, the applicant cannot be expected to work with uncontrolled migraines before the benefits of the suggested prophylaxis had been realized. All of this leads me to conclude that the work modifications and other suggestions by Dr. Desai would likely not have ensured that the applicant could perform the essential tasks of her employment.

24The overuse of medication contributed to the applicant’s headaches. This is well documented, including in the assessment found in Dr. Kreeft’s treatment plan. However, there is no medical evidence that speaks to the extent this factor effected the applicant’s functional abilities. Additionally, the use of medication arose from the need to control accident related migraine headaches. In my view, the “but for” causation test in Sabadash v. State Farm et al., 2019, ONSC, 1121 applies. The applicant would have never engaged in the overuse of medication “but for” her accident-related injuries. Given these two circumstances, I assign no weight to this factor.

25For all these reasons, I find that as a result of the accident the applicant was unable to complete the essential tasks of her employment, and therefore, is entitled to a pre-104 IRB from May 1, 2021 to September 28, 2022. This period cannot end on September 29, 2022, as suggested by the applicant, because this exceeds the 104 week period by one day.

Quantum

26The applicant suggests that quantum be calculated according to the Income Loss Report by ADS Forensics (ADS report) dated October 8, 2024. She submits that in the report the applicant’s long term disability and Canada Pension Plan Disability (CPP-D) are rightfully deducted from the IRB payments. Employment Insurance (EI) is not deducted, but submits, that EI may be deducted if the Tribunal deems this deduction to be appropriate. The respondent does not dispute this means of calculating the IRB quantum, except for how ADS Forensics applies the CPP-D deduction for one year. In its view, the CPP-D deduction should be applied on an ongoing basis.

27I agree with the respondent regarding the ongoing deduction for CPP-D, as this is “other income replacement assistance” within the meaning of s. 4(1) of the Schedule.

28The applicant’s EI file shows that she received EI payments from September 2021 to January 2022. In my view, this is also “other income replacement assistance” and can be deducted from the IRB quantum.

29The first step in determining IRB quantum is calculating the person’s gross annual income under s. 4(2) of the Schedule. The two methods for doing so are to either multiply the person’s gross employment income from four weeks before the accident by 13 or to use person’s gross employment income from the 52 week period before the accident.

30The ADS report calculates the applicant’s projected income loss based on inflation adjusted average earnings from 2021 to 2025. I cannot give weight to this report because this method is inconsistent with the Schedule.

31Using the documents before me, the applicant’s gross annual income is calculated according to the 4 weeks income times 13 as follows:

Her 2020 Income Tax Return shows employment income of $34,197.00

Divided by 52 weeks equals 657.63 per week.

657.63 x 4 weeks x 13 = $34,197.00

32The applicant’s 2019 income tax return shows lower employment income. As such, there is no reason to calculate the gross employment income using the other method in 4(2) of the Schedule.

33The next step is to calculate 70% of the weekly amount of the annual gross income. This works out to $460.34.

34The pre-104 IRB period is from May 1, 2022 to September 28, 2022. The first week is subtracted under 6(2)(a) of the Schedule, resulting in a period of 71.57 weeks.

35The income replacement assistance deducted from the IRB quantum is calculated as follows:

CPP-D: $9,128.04 ($760.67/month x 12 payments) divided by 52 weeks = $175.54 per week

71.57 weeks x $175.54 = $12,563.40

Long Term Disability (LTD): $17,294.49 from August 28, 2021 to January 31, 2024, a period 126.57 weeks

$17,294.49 divided by 126.57 = $136.64 per week.

August 28, 2021 to September 28, 2025 = 56.57 weeks

56.57 weeks x $136.64/week = $7,729.72

EI benefit of $5,895.00.

The total deducted from IRB is $12,563.40 + $7,729.72 + $5,895.00 = $26,188.12

$460.34per week x 71.57 = $32,946.53 IRB

$32,946.53 IRB - $26,188.12 deductions = $6,758.41

36Consequently, I find that the applicant is entitled to a pre-104 IRB of $6,758.41.

37The final point to address for the pre-104 IRB is the respondent’s position that it is not liable to pay an IRB for certain periods under s.33(6) because the applicant never responded to letters requesting information under 33(1)1. It points to a letters dated June 15, 2021, May 11, 2022, June 6, 2022 where it asked for information required to assess the applicant’s entitlement to benefits. The applicant did not provide the information. The respondent subsequently denied the IRB in a letter dated August 23, 2022. It argues that the applicant cannot be entitled to an IRB for any period to time covered by the letters. The applicant submits that the respondent denied her application for an IRB and that s. 33(6) is no longer in effect.

38I agree with the applicant. Section 33(1)1 states:

33. (1) An applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:

34. Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.

39The information referred to in this section must be “reasonably required” to determine the applicant’s entitlement to a benefit. The respondent denied entitlement to the IRB in its letter dated August 23, 2022 based on the findings of two insurer examinations. At that point, the respondent had the information it needed to make a decision on IRB entitlement. Under these circumstances, section 33(6) does not apply as the information requested in the insurer letters was not “reasonably required” to determine entitlement to a benefit. As such, I am not persuaded that deductions should be made under 33(6).

Post-104 IRB

40I find that the applicant is entitled to a post-104 IRB.

41To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

42The applicant submits that her headaches and psychological injuries make it unlikely that she would be able to engage in any employment.

43The respondent argues that her headaches have largely resolved and that there is insufficient evidence to justify a diagnosis of any psychological disorder. It further argues that even if the applicant has an accident related psychological condition, there is no evidence of that this condition impairs her functioning. In its view, the applicant can work and is not entitled to a post-104 IRB.

44The s. 25 Psychovocational Assessment dated June 17, 2024 by Dr. Miller, psychologist, and Mr. Walton, psychotherapist, states that the applicant reported cognitive dysfunction with her memory, being easily distracted in conversation, and having word finding difficulties. These factors were not evident in her testimony. She testified in a clear and direct manner despite being in a stressful situation of a witness. The applicant points out that she did not remember her start date at McDonalds, but this a relatively minor point given the overall quality of her testimony.

45The Psychovocational Assessment diagnoses the applicant with an adjustment disorder with mixed anxiety and depressed mood caused by the accident. The assessment also indicates that the applicant has features of post-traumatic symptom disorder and a somatic symptom disorder, but not enough for a diagnosis. At the hearing, Dr. Miller opined that he now believes that the applicant likely has a somatic symptom disorder. According to the respondent, none of these diagnoses are justified as the applicant’s psychometric testing showed low levels of anxiety and depression.

46In my view, the Tribunal does not have the expertise needed to interpret test data and reject Dr. Miller’s diagnosis in the manner suggested by the respondent. Additionally, there is no other psychological assessment for me to consider. Consequently, I accept Dr. Miller’s evidence and find that the applicant sustained a psychological injury in the accident.

47The applicant testified on experiencing psychological symptoms, but gave no insight into how these symptoms impact her functioning. The lack of impact on her functioning is also demonstrated by there being no record of the applicant seeking psychological treatment and no indication that she has used anti-depressant medication since 2022. This undermines the premise that her psychological condition caused limitations. In light of all these factors, I find that the applicant has not established, on a balance of probabilities, that her psychological symptoms effect her functional abilities.

48The s.25 Neurological Evaluation Report by Dr. Dost indicates that the applicant was assessed on April 24, 2024. Like Dr. Desai, this report concludes that the applicant’s pre-existing migraines were exacerbated by the accident.

49Dr. Dost documents improvements with headaches:

…headaches twice per week. Which represents a significant reduction in frequency and the intensity is also less. The remaining headaches are aborted with sumatriptan 1-2 times per week.

50Dr. Dost further notes that the applicant no longer has headaches caused by overuse of medication. This is consistent with the applicant’s testimony. She testified that she no longer overuses medication and is learning to manage pain without medication through breathing exercises.

51The applicant spoke to improvement of her headaches and how this effects her ability to work in Dr. Dost’s report:

She indicates to me that if the neck pain and right arm symptoms disappeared she would be able to gain employment as the headaches have improved with prophylactic and abortive therapy as noted above. However, was uncertain the degree to which she would be able to work as increased activities levels trigger headaches.

52The applicant’s neck injury is accident related. However, the neck injury did not prevent the applicant from working as a morning shift manager at McDonalds. Her principal complaint has always been that migraines prevented her from working and these have significantly decreased since she stopped working in 2022. Her right arm symptoms were diagnosed as carpal tunnel syndrome by Dr. Ballard, physiatrist, in her evaluation dated November 23, 2022, and are not accident related.

53In any event, the report of Dr. Dost shows that ongoing headache prophylaxis, such as Botox injections, has significantly decreased the applicant’s headache symptoms. This persuades me that she is able to engage in some part-time employment commensurate with her education and experience. In his assessment, Dr. Miller opines that the applicant completed grade 12, and her employment experience would make her suitable to work as an office clerk.

54Section 6(2)(b) of the Schedule allows a post-104 IRB if the insured suffers a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

55The applicant argues that a literal interpretation of s. 6(2)(b), as found in the Superior Court of Justice in Traders General Insurance Company v. Rumball, 2022 ONSC 7215 (Traders v Rumball), should not be applied by the Tribunal.

56In Traders v Rumball the insured worked as an education assistant and had a wedding planning business. She planned four weddings after the accident and also completed volunteer work.

57The Court analyzed the caselaw and statute and concluded:

…While those decisions include as part of the post-104 disability test a test that suitable employment means employment in a competitive, real-world setting, considering an employer’s demands for reasonable hours and productivity and a test that the work should also be comparable in terms of status and wages, we do not accept that is the test set forth in the Schedule. As such this court, being bound by the decision of the Court of Appeal in Burtch, concludes that the only test to be applied in establishing an entitlement to post-104 IRBS is the one set forth in the Schedule and it does not include employment in a competitive, real-world setting, nor does it include any test that suitable employment should be comparable in terms of status and wages.

58The applicant argues that the facts in Traders v Rumball are distinguishable because the applicant has not worked since the accident and has not engaged in volunteer work.

59I agree that the facts are different, but those differences do not effect the applicability of Traders v Rumball. The Court’s guidance relates to how the post-104 disability test is to be interpreted. Specifically, that factors such as a competitive, real-world employment setting are not part of the post-104 disability test. The specific facts in Traders v Rumball do not factor into how the Court arrived at its interpretation of the test. Consequently, the applicant has not brought to light a meaningful distinction with Traders v Rumball. I also note that I must consider this jurisprudence as it is binding on the Tribunal.

60As noted above, I find that the applicant can engage in part-time employment as an office clerk. This is because the intensity and frequency of her headaches have decreased significantly, as noted in the report of Dr. Dost. There are days where she is free of headaches and could engage in employment as an office clerk, a position that she is reasonably suited by education and experience. This satisfies the requirement of engaging in “any employment” as an employer’s requirement to work regular hours is not a factor to be considered under Traders v Rumball. Consequently, I find that the applicant does not meet the post-104 disability test because she has the ability to engage in employment.

61Therefore, I find that the applicant is entitled to a post-104 IRB from September 29, 2022 to April 23, 2024, the day before Dr. Dost’s assessment confirmed that the applicant’s headaches have significantly improved.

Quantum

62Post-104 IRB entitlement is from September 29, 2022 to December 31, 2022, is a period of 13.29 weeks. The IRB is calculated as follows:

IRB is $645.34/week ($460.34 + 185.00) less deductions

2022 CCP-D deduction is $175.54/week

LTD deduction is $136.64/week

Weekly IRB is $333.16 ($645.34 - $175.54 - $136.64)

IRB entitlement is $4,427.70 ($333.16 x 13.29)

63The period from January 1, 2023 to December 31, 2023 is 52 weeks. IRB is calculated as follows:

IRB is $645.34/week ($460.34 + 185.00) less deductions

LTD deduction is $136.64/week

CPP-D $9,721.32 ($810.11/month x 12 months) divided by 52 weeks = $186.95/week

Weekly IRB is $321.75 ($645.34 – $136.64 – 186.95)

$321.75 x 52 weeks = $16,731.00

64IRB entitlement for 2023 is $16,731.00 ($321.75 x 52 weeks).

65IRB entitlement for 2024 cannot be calculated as the 2024 CPP-D deductions have not been provided to the Tribunal.

66The applicant made no submissions on this plan. As she has provided no basis for me to find that this plan is reasonable and necessary, I find that she is not entitled to this plan.

Interest

67Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is payable on the overdue amounts of IRB payments.

Award

68The 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.

69The applicant argues that the respondent unreasonably withheld the IRB because the medical evidence clearly showed that she was entitled to this benefit. In particular, that she had a significant problem with migraines. In her view, the respondent ignored the evidence and relied on a Dr. Desai’s report which did not properly support the IRB denial. She relies on the findings in Applicant v Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649 (ON LAT) (Applicant v Portage) to support her position that the respondent ignored evidence in order to justify its IRB denial.

70The respondent submits that it was reasonable to rely on the report of Dr. Desai to deny the IRB.

71The circumstances in Applicant v Portage are distinguishable. The respondent in that case ignored the findings of its own experts and only relied on the evidence that supported the denial. In this case, the applicant did not tender its own report until years after a denial supported by Dr. Desai’s report. I do not agree with the respondent’s decision to deny the pre-104 IRB, but this does not make its decision unreasonable given the information available at the time. Thus, I find that the respondent is not liable to pay an award because the applicant has not established that it unreasonably withheld the IRB.

ORDER

72The applicant is entitled an IRB of $6,758.41covering the period from May 1, 2022 to September 28, 2022;

73The applicant is entitled an IRB of $4,427.70 covering the period from September 29, 2022 to December 31, 2022;

74The applicant is entitled an IRB of $16,731.00 covering the period from January 1, 2023 to December 31, 2023;

75She is not entitled to the treatment plan;

76She is entitled to interest;

77The respondent is not liable to pay an award.