Small v. Northbridge General Insurance Company, 2026 CanLII 21072

Citation: Small v. Northbridge General Insurance Company, 2026 ONLAT 24-008713/AABS

Licence Appeal Tribunal File Number: 24-008713/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:

Neil Small Applicant

and

Northbridge General Insurance Company Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Oli Akinsanmi, Counsel

For the Respondent: Dilenthi Warakaulle, Counsel

HEARD: By way of written submissions

OVERVIEW

1Neil Small, the applicant, was involved in an automobile accident on July 31, 2023, 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, Northbridge General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2After the case conference held on December 3, 2024, the respondent brought a motion to request an Order that the applicant be compelled to attend an upcoming insurer’s examination (“IE”) scheduled for March 18, 2025, and an Order to stay the application until the applicant attended the IE. The Tribunal denied the motion on the basis that the Tribunal did not have the jurisdiction to compel an applicant to attend an IE, and that the preliminary issue of the applicant’s non-attendance at the scheduled IE was premature, as the examination had not yet taken place.

3The applicant did not attend the scheduled March 18, 2025 IE, and on April 10, 2025 the respondent brought another motion to raise the preliminary issue that pursuant to s. 55(1) of the Schedule, the applicant’s application should be stayed, for failure to attend an IE scheduled pursuant to s. 44 of the Schedule. The Tribunal set this motion to be heard as part of these written hearing proceedings.

PRELIMINARY ISSUE

4The respondent requests an order pursuant to s. 55 of the Schedule to stay the applicant’s application before the Tribunal for failure to attend an IE arranged by the respondent pursuant to s. 44 of the Schedule.

SUBSTANTIVE ISSUES

5The substantive 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?

ii. Is the applicant entitled to $60.00 ($1,324.15 less $1,264.15 approved) for physiotherapy services, proposed by Ajax Rehabilitation Centre in a treatment plan dated November 28, 2023?

iii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Oshawa Physiotherapy & Rehabilitation Centre in a treatment plan dated February 9, 2024?

iv. Is the applicant entitled to $2,460.00 for a physiatry assessment, proposed by Oshawa Physiotherapy & Rehabilitation Centre in a treatment plan dated December 29, 2023?

v. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by Oshawa Physiotherapy & Rehabilitation Centre in a treatment plan dated December 20, 2023?

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

RESULT

6On the preliminary issue, I find the respondent has not established that the applicant is non-compliant with s. 44 of the Schedule for failure to attend a scheduled IE.

7On the substantive issues, I find that:

i. The applicant is removed from the Minor Injury Guideline;

ii. The treatment plans in dispute are reasonable and necessary;

iii. The applicant is entitled to interest in accordance with s. 51 of the Schedule.

PRELIMINARY ISSUE

Law - Section 44

8Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

9Section 44(9)(2)(iii) requires an insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner.

10Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied. The onus is on the insured person to put forth a reasonable explanation for non-attendance at an IE.

11The Tribunal may, under s. 55(2) of the Schedule permit an insured person to apply to the Tribunal despite a failure to comply with s. 44, subject to terms and conditions. Section 55(3) states that the Tribunal may impose terms and conditions on a permission granted under section 55(2).

Background and Parties’ Positions

12The respondent submits that the applicant has failed to attend a properly scheduled General Practitioner (“GP”) IE. By way of Notice of Examination dated February 25, 2025, the respondent requested the applicant’s attendance at a GP IE with Dr. Safik Dharamshi on March 18, 2025 to address the MIG and medical/rehabilitation benefits. On February 28, 2025, the applicant’s legal representative notified the respondent that the applicant would not be attending the scheduled IE, as it was not reasonable nor necessary and the respondent had previously obtained a medical opinion on the MIG and the med/rehab benefit by way of a prior IE assessment.

13The respondent does not dispute that it had previously obtained a musculoskeletal assessment report from Dr. Dharamshi on May 7, 2024. However, it argues that the additional IE was required to respond to the s. 25 Chronic Pain Assessment Report dated January 19, 2025, which the applicant had served on the respondent after the case conference. The respondent submits that it was within its rights to obtain a responding report, especially since one of the issues before the Tribunal is whether the applicant is entitled to a chronic pain assessment, and that the applicant’s s. 25 report addresses the applicability of the MIG.

14The applicant submits that the proposed IE is overly intrusive, and constitutes an unnecessary invasion of privacy. He argues that the respondent had already obtained a musculoskeletal IE report by Dr. Dharamshi dated May 7, 2024, where the MIG and the OCF-18 for a chronic pain assessment were addressed. The applicant argues that an additional in-person IE is not required, and that the respondent could have proceeded by way of a paper review.

Is the s. 44 assessment reasonably necessary?

15I find that the respondent has not established that the proposed IE is reasonably necessary.

16The applicant has cited the Tribunal decision 17-005291/AABS v. Travelers, 2018 CanLII 13171 (ON LAT), for a list of criteria in determining if an IE is reasonably necessary:

i. The timing of the insurer’s request;

ii. The possible prejudice to the other side;

iii. The number and nature of the previous insurer’s examinations;

iv. The nature of the examination being requested;

v. Whether there are any new issues being raised in the applicant’s claim that require evaluation; and,

vi. Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.

17When applying these criteria, I accept that there is a reasonable nexus between the examination requested and the applicant’s injuries. The respondent submits the IE was requested to address the applicability of the MIG and to obtain a responding report to the applicant’s s. 25 chronic pain report. Given that the applicant is arguing that he suffers from chronic pain, I find that there is a reasonable nexus between these impairments and the proposed general practitioner’s IE. Further, I accept the respondent’s argument that the timing of the request for a new IE was due to the receipt of the applicant’s s. 25 chronic pain report.

18However, when considering the nature of the examination, the number and nature of the previous IEs and the possible prejudice to the parties, I find that the respondent has not established the requested IE is reasonably necessary. The respondent does not dispute that it had previously obtained two IE reports dated May 7, 2024. The physiatry IE by Dr. Abdul-Wahab Khan considered the applicability of the MIG and the OCF-18s for a neurology assessment and a physiatry assessment. The musculoskeletal IE by Dr. Dharamshi also considered the applicability of the MIG and the OCF-18 for a chronic pain assessment. Both assessments were conducted in person and included physical examinations.

19I agree with the applicant that the respondent had already conducted a musculoskeletal assessment nine months before the proposed IE with the same assessor, to address whether the proposed s. 25 chronic pain assessment was reasonable and necessary and whether the applicant remained within the MIG. Dr. Dharamshi concluded that the applicant had only met one criteria (Criterion 3) of the AMA Guides definition of chronic pain syndrome, and that there was no indication of a chronic pain condition that would benefit from an assessment. Accordingly, Dr. Dharamshi had already made a determination as to whether the applicant had suffered from chronic pain. The respondent’s assessors had also already addressed all of the treatment plans in dispute. I further note that the applicant had not submitted a new treatment plan prior to the IE being requested. Rather, the requested IE proposed to address the same benefit and the applicability of the MIG, as had been addressed by the previous IEs. I agree with the applicant that an additional in-person IE to address the same issue, is duplicative.

20The respondent argues that the new IE is required to respond to the applicant’s s. 25 chronic pain report and the new medical evidence submitted. However, I agree with the applicant that if the purpose of the new IE was to address the s. 25 report, the respondent has not explained why the addendum could not be obtained by way of a paper review. The respondent makes the general submission that assessors “generally prefer to conduct in-person examinations when prior assessments are more than six months old”. However, no evidence was provided in support of this claim, nor has the respondent provided any evidence as to whether a paper review was proposed to its assessor. I agree with the applicant that given that he had already attended two prior physical assessments to address the same issues, and the fact that the reason for the respondent’s request was to address the s. 25 chronic pain report, the respondent has not demonstrated why an additional in-person examination is required, rather than the less intrusive paper review.

21Given that I have found that the proposed IE was not reasonably necessary, I find that the respondent has not established that the applicant was non-compliant with s. 44 of the Schedule for failure to attend a properly scheduled IE.

SUBSTANTIVE ISSUES

Minor Injury Guideline (“MIG”)

22Section 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.”

23An 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 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. The applicant submits that he should be removed from the MIG on the grounds of pre-existing medical condition, and chronic pain.

The applicant is removed from the MIG due to his accident-related chronic pain

24The applicant submits that as a result of the accident, he has developed chronic pain. He relies on the January 19, 2025 Chronic Pain Assessment Report of Dr. Ahilraj Siva, who diagnosed the applicant with myofascial pain syndrome, chronic pain syndrome with central and peripheral sensitization, cervical, thoracic spine and bilateral shoulder sprains and strains. The applicant further relies on clinical notes and records (“CNRs”) of his family doctor, Dr. Justin Chung, which establish ongoing back, neck and shoulder pain and headaches post-accident. Finally, the applicant cites the treatment records from his physiotherapy clinic, Ajax Rehabilitation Centre.

25The respondent submits that the applicant has not developed chronic pain as a result of the accident. It argues that the applicant has not demonstrated any functional impairment due to pain. The respondent further submits that the applicant was diagnosed with chronic pain solely on the persistence of pain symptoms beyond six months, and that the applicant did not meet any of the American Medical Association’s Guides diagnostic criteria for establishing chronic pain.

26I find that the applicant has met his onus to prove, on a balance of probabilities, that he has developed chronic pain with functional impairment as a result of the accident.

27The applicant was diagnosed with chronic pain by both his family doctor, and his s. 25 assessor. The CNRs of Dr. Chung reveal that in the days following the accident, the applicant reported neck, low back pain and headaches to his family doctor. Dr. Chung found that the applicant had limited neck rotation and diagnosed him with whiplash and recommended that the applicant take NSAIDs and start physiotherapy. The applicant continued to report persistent neck pain with little improvement even with attending physiotherapy, at visits on September 15, 2023, October 16, 2023, October 26, 2023, April 24, 2024, August 29, 2024, and December 4, 2024. On April 24, 2024 Dr. Chung diagnosed the applicant with chronic neck pain post MVA, and on December 4, 2024 with whiplash, neck strain chronic since MVA.

28Dr. Siva, in his s. 25 chronic pain report, similarly diagnosed the applicant with myofascial pain syndrome and chronic pain syndrome with central and peripheral sensitization, in addition to strains and sprains. Dr. Siva found that these diagnoses were as a result of the subject accident, and were now chronic in nature.

29The applicant has also established that he suffers from functional impairment due to chronic pain. The applicant reported to his family doctor on September 15, 2023 and April 24, 2024 that he was limited in his return to work at his construction job, doing only light duties or working limited hours. This was similarly reported to his s. 25 assessor Dr. Siva, and to the respondent’s s. 44 assessors. The applicant also reported to Dr. Chung that the pain was impacting his sleep, as it was difficult to find a comfortable position. Dr. Chung, Dr. Siva and the respondent’s physiatry assessor Dr. Abdul-Wahab Khan all found that the applicant had reduced range of motion in his neck and shoulders, and the applicant reported to Dr. Siva that the pain was aggravated by bending, lifting, twisting and reaching.

30Accordingly, I find that the applicant has met his onus to prove, on a balance of probabilities, that he suffers from functional impairment due to pain.

31I note the respondent’s submissions that the applicant has not established that he has met the American Medical Association’s Guides (“Guides”) diagnostic criteria for establishing chronic pain. However, I note that while the Guides have been used by the Tribunal as an interpretive tool for evaluating chronic pain claims, particularly in situations where there has not been a formal chronic pain diagnosis, they are not binding on the Tribunal and are not incorporated into the Schedule. In the present matter, the applicant has been diagnosed with chronic pain by his family doctor and s. 25 assessor, and has established functional impairment due to pain.

32Accordingly, I find that the applicant has established that he should be removed from the MIG due to his accident-related chronic pain.

33Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

34The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.

Outstanding balance of $60.00 ($1,324.15 less $1,264.15 approved) for the OCF-18 dated November 28, 2023

35I find that the applicant is entitled to the outstanding balance of $60.00 for this treatment plan.

36The OCF-18 dated November 28, 2023 proposed 9 sessions of physiotherapy services, and by way of an Explanation of Benefits dated December 13, 2023, the respondent partially approved $1,264.15 citing the MIG limit. Since the applicant has now been removed from the MIG, and at the time the OCF-18 was submitted physiotherapy services were being recommended by his family doctor, I find the applicant is entitled to the remaining balance of the treatment plan.

OCF-18 dated February 9, 2024 for a chronic pain assessment

37The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

38I find that the applicant has established that the chronic pain assessment is reasonable and necessary.

39The applicant had persistently been reporting neck and shoulder pain to his family physician, and had been diagnosed with chronic pain by his family doctor in April 2024. I find that the medical evidence supports that the chronic pain assessment is reasonable and necessary.

OCF-18 dated December 29, 2023 for a physiatry assessment

40I find that the applicant has met his onus to prove, on a balance of probabilities, that the proposed physiatry assessment is reasonable and necessary.

41The applicant submits that he had suffered from pre-existing back pain, and a February 2023 MRI had revealed L4-L5 disc bulge causing mild spinal canal stenosis and L5-S1 small central disc herniation. The applicant further submits that the respondent’s s. 44 physiatry assessor had noted the history of lumbar degenerative disease and noted that it was possible that the applicant had suffered aggravation of his pre-existing lower back pain as a result of the accident. Given this documented medical history and ongoing back pain complaints, the applicant argues that a physiatry assessment was warranted.

42The respondent submits that Dr. Khan found in his s. 44 physiatry assessment that although the applicant continued to experience pain, a physiatry assessment would not provide more diagnostic clarity or alter the course of management. It argues that the applicant has fully been diagnosed and appropriate treatment recommendations have been made.

43I find that the applicant has established that further investigation into his pain complaints by way of a physiatry assessment, is warranted.

44The applicant had a pre-existing history of a lower back impairment, which had been noted by the respondent’s s. 44 assessor. At the time the physiatry assessment was proposed, the applicant was continuing to report low back pain. The OCF-18 noted the applicant’s pre-existing lower back pain, and stated that the applicant’s injuries were not resolving with conservative rehabilitation. It further stated that a physiatry examination was indicated to determine the need and type of physical rehabilitation treatment needed. Given the medical evidence provided by the applicant, I find that he has established that the proposed physiatry assessment is reasonable and necessary.

OCF-18 dated December 20, 2023 for a neurological assessment

45I find that the applicant has met his onus to prove, on a balance of probabilities, that the proposed neurological assessment is reasonable and necessary.

46The respondent relies on the s. 44 neurology assessment of Dr. Jeremy Spevick, dated May 7, 2024. Dr. Spevick found that there was no accident-related diagnosis from a neurological standpoint. Rather, Dr. Spevick found that the applicant’s headaches were cervicogenic and musculoskeletal in nature.

47I agree with the applicant that the medical evidence establishes that further investigation into his headaches by way of a neurological assessment was warranted at the time of OCF-18 submission. The applicant reported to his family doctor in the days after the accident that he suffered from headaches, felt “foggy and pain travels from occiput around the temple, behind eye”. Dr. Chung diagnosed the applicant with “whiplash-concussion like symptoms”. The applicant continued to report persistent headaches to Dr. Chung. Dr. Chung ordered an MRI of the brain on September 15, 2023, noting “persistent headaches atypical for neck injury”. While the MRI results were normal, the applicant continued to report ongoing headaches throughout 2023.

48While the respondent’s assessor ultimately concluded that the applicant’s headaches were cervicogenic, I note that the purpose of an assessment is to determine whether a condition exists. I find that the applicant has provided sufficient medical evidence that further investigation into the applicant’s ongoing accident-related headaches was warranted.

Interest

49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is payable in accordance with s. 51 for the treatment plans in dispute.

ORDER

50On the preliminary issue, I find the respondent has not established that the applicant is non-compliant with s. 44 of the Schedule for failure to attend a scheduled IE.

51On the substantive issues, I find that:

i. The applicant is removed from the Minor Injury Guideline;

ii. The treatment plans in dispute are reasonable and necessary;

iii. The applicant is entitled to interest in accordance with s. 51 of the Schedule.