Citation: Crooks v. TD General Insurance Company, 2026 ONLAT 24-001964/AABS

Licence Appeal Tribunal File Number: 24-001964/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:

Yanique Crooks

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Leo Demarce

APPEARANCES:

For the Applicant:

Bianca Crocetti, Paralegal

For the Respondent:

Ashley Dunkley, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Yanique Crooks, the applicant, was involved in an automobile accident on December 5, 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, TD 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:

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 (“MIG”) limit? The respondent submits that there is no money remaining under the Minor Injury Guideline limit.

ii. Is the applicant entitled to the treatment plans proposed by Brampton Physiocare and Wellness Centre, as follows:

a. $1,962.00 for chiropractic services, in a treatment plan submitted April 26, 2022;

b. $1,660.02 for physiotherapy services, in a treatment plan submitted November 15, 2022; and

c. $4,205.26 for physiotherapy services, in a treatment plan submitted February 14, 2023?

iii. Is the applicant entitled to $2,000.00 for a psychological assessment proposed by Brampton Physiocare and Wellness Centre in a treatment plan submitted March 29, 2022?

iv. Is the applicant entitled to $2,000.00 for a chronic pain assessment, proposed by Ortho Neuro Physiocare in a treatment plan/OCF-18 (“plan”) submitted October 27, 2022?

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

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

RESULT

3I find that the applicant has demonstrated that her injuries are not predominantly minor and is therefore not subject to the MIG limits.

4I find that the applicant is entitled to the following treatment plans and assessments:

i. As proposed by Brampton Physiocare and Wellness Centre:

a. $1,962.00 for chiropractic services, in a treatment plan submitted April 26, 2022;

b. $1,660.02 for physiotherapy services, in a treatment plan submitted November 15, 2022;

c. $4,205.26 for physiotherapy services, in a treatment plan submitted February 14, 2023; and

d. $2,000.00 for a psychological assessment in a treatment plan submitted March 29, 2022.

ii. $2,000.00 for a chronic pain assessment, proposed by Ortho Neuro Physiocare in a treatment plan/OCF-18 (“plan”) submitted October 27, 2022.

5The respondent is liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.

6The applicant is entitled to interest on any overdue payment of benefits.

ANALYSIS

Minor Injury Guideline – the applicant is removed from the MIG

7The applicant has demonstrated that she is to be removed from the MIG due to a concussion. A Physician’s Statement prepared by Dr. Ali Kassim of Richvale Medical Centre dated December 21, 2021 states that Ms. Crooks suffers from lower back pain, shoulder pain and strain, neck pain and a concussion due to the accident (Page 737 of Applicants Submissions).

8Section 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.”

9An 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 from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that concussions, 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.

10The applicant pointed to the concussion diagnosis in their written submissions, pointing to the Attending Physician’s Statement – Short Term Disability Claim/Early Referral Services form dated December 21, 2021. Furthermore, the applicant demonstrates that she reported the following symptoms following the accident:

i. Visited Dr. Ali Kassim, family doctor, whose CNRs show:

a. December 6, 2021 - indicating the injuries that Ms. Crooks sustained in this accident. Specifically, the notation of that first day states that she is complaining of lower back pain.

b. December 16, 2021 - with complaints of lower back pain, which Dr. Ali prescribed medication such as pain killers and muscle relaxers, alongside giving her a referral for physiotherapy.

c. December 21, 2021 - diagnosis of a concussion

d. February 26, 2022 - complaints of anxiety, fatigue, irritability, difficulty concentrating, sleep disturbance.

e. March 26, 2022 - with complaints of anxiety and PTSD. Dr. Ali received a letter from Physiocare and Wellness Clinic stating that she would benefit from a lumbar brace due to post accident back pain.

f. On April 7, 2022 - Dr. Ali provided a referral for a lumbar spine brace.

g. February 2, 2023 - with complaints of right knee pain.

ii. Visited Physiocare and Wellness Clinic where Soap Notes dated December 23, 2021 states she is in constant pain.

iii. Visited the emergency department at Credit Valley Hospital Clinical Notes and Records (CNRs) show:

a. June 6, 2022 - experiencing headaches

b. June 20, 2022 - experiencing headaches and migraine

c. June 29, 2022 - experiencing headaches

d. September 15, 2022 - experiencing headaches

11I find that the applicant has demonstrated clearly that she should not be held within the MIG based on the diagnosis of a concussion because a concussion and ongoing headaches do not fall within the s.3 definition of a minor injury.

12The applicant is entitled to the treatment plans for chiropractic and physiotherapy services from Brampton Physiocare and Wellness Centre as follows:

i. $1,962.00 for chiropractic services, in a treatment plan submitted April 26, 2022;

ii. $1,660.02 for physiotherapy services, in a treatment plan submitted November 15, 2022;

iii. $4,205.26 for physiotherapy services, in a treatment plan submitted February 14, 2023; and

13To receive payment for a treatment and assessment plan under s.15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant 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.

14These treatment plans were denied based on the multidisciplinary report dated August 29, 2022 of Dr. Bansel, GP and Dr. Ladak, Psychologist. The findings in this report were:

i. From a psychological perspective, Ms. Crooks’ symptoms are considered to meet the criteria of a minor injury.

ii. From a musculoskeletal injury perspective that Ms. Crooks had sustained uncomplicated, self-resolving, soft tissue type injuries involving her back in the subject MVA.

15I find that the reasons provided in the denial based on the multidisciplinary report stated above are no longer applicable as the applicant has been removed from the MIG. The respondent also argues at paragraph 32 of their written submissions:

i. It is also important to note that for every treatment plan in dispute, the Applicant failed to address each treatment plan. She failed to adduce any evidence to justify the reasonableness for same. Therefore, an inference in her failure of doing same should be considered

16I do not fully agree with the respondent’s argument that the applicant failed to adduce any evidence to justify the reasonableness. While the applicant did not provide specifics, she was able to point me to enough evidence as outlined in paragraph 10 above, for me to make my own inferences.

17The respondent requested that the Tribunal not consider the applicant’s submissions, in that doing so would infer that the Tribunal was acting as an advocate to the applicant. This is stated at paragraph 15 and 16 of their submissions:

i. (15) that by filing a 1185-page brief, is not conclusive of evidence. It is not the role of the Respondent nor this Tribunal to read the entire 1185 pages and to presume to know of which page in the brief the party is referencing. Enclosing the entire clinical notes and records of facility is not appropriate, and submissions are not evidence

ii. (16) Adjudicator Pahuta in Barlow v Wawanesa Mutual Insurance Company, held that when a Case Conference Report and Order expressly specifies that the parties' submissions must make specific reference to the evidence and law by tab and page number, and a party fails to do so, it is not the Tribunal's role to advocate for the party. The Tribunal cannot presume to know which evidence or portion thereof, if any, that a party intends to rely on in advancing its case. Here, the Applicant failed to pinpoint evidence in their submissions, and as such, their failure to do so means that he has failed to meet his burden of proof for the various issues in dispute. And any attempt to do so in a reply, will be invalid, and should not be taken into account.

18However as stated above, the Schedule requires that the treatment plans be reasonable and necessary. When I consider the goals of the treatment plans, they are intended to reduce pain and increase strength and range of motion. Considering the applicant’s ongoing pain, I find the treatment plans are necessary because they address the applicant’s need for pain reduction and return to activities of normal living.

19I find the applicant is entitled to the treatment plans for chiropractic services and physiotherapy services.

Psychological Assessment and Chronic Pain Assessment approved

20The applicant is entitled to $2,000.00 for a psychological assessment in a treatment plan submitted March 29, 2022.

21The applicant is also entitled to $2,000.00 for a chronic pain assessment, in a treatment plan submitted October 27, 2022.

22My findings in the Treatment Plans Approved section apply to the psychological assessment as well as the chronic pain assessment. The following analysis is regarding the test that the plans be reasonable and necessary.

23The goal of the psychological assessment is to determine if there is a diagnosis of a psychological impairment, and if so, the plan for treatment. I find that based on the ongoing reported complaints as described in paragraph 10 above, that the treatment plan is necessary because….?. I find that the assessment is also reasonable as it is based on the rates presented by the Schedule.

24The goal of the chronic pain assessment is to determine if there is a diagnosis of chronic pain, and if so, the plan for treatment. I find based on the ongoing reported complaints of pain over a period of time that is longer than 6 months, that this treatment plan is necessary because….. I find that the assessment is also reasonable as it is based on the rates presented by the Schedule.

Award granted

25The respondent is liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.

26If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

27It is well established that the bar for granting an award is very high. The conduct of the insurer must rise above being an incorrect decision and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

28I considered this very carefully in this circumstance as it is not obvious that the insurer acted in any way other than in good faith. However, I consider the history of the applicant’s complaints and the evidence that was provided to the respondent.

29The multidisciplinary report as discussed in paragraph 14 above identify the following symptoms:

i. Daily headaches, including medication

ii. Feels down and in constant pain

iii. Sleep initiation and sleep issues requiring a sleep aid.

iv. Feeling tired throughout the day

v. Back pain on a daily basis

30The multidisciplinary report also had access to the clinical notes and records of Dr. Ali Kassim for 2022-2023 as of May 26, 2023 according to Appendix A – Documentation Listing as shown on page 79 of the respondent’s written submissions. This would likely have included the physician’s report that diagnosed the applicant with a concussion.

31According to ICD-10 regarding post concussion syndrome:

i. Post-Concussion Syndrome (PCS) according to ICD-10, is defined if the patient sustains 3 of the following symptoms list of symptoms in the span of 4 weeks after the injury: headache, dizziness, fatigue, irritability, sleep problems, concentrations problems, memory loss, problems tolerating stress/emotion or alcohol.

32The multidisciplinary report of the respondent lists 3 of these symptoms, headaches, fatigue and sleep issues. The report also lists the clinical notes and records from Trillium Hospital, Dr. Ali Kassim, and Physiocar and Wellness Centre, which identified the symptoms that were reported in paragraph 10 above. The conclusion that I derive from this is that at the very least the respondent should have been aware of the applicant’s concussion diagnosis as early as April of 2023 when the addendum report was prepared. Or, at least had the knowledge that the applicant was displaying symptoms of a concussion based on the information on hand.

33Failing that, it was evident that the applicant should have been removed from the MIG upon reading the applicant’s submissions stating that the applicant was diagnosed with a concussion. The insurer was in possession of the applicant’s submissions on or about February 5, 2025 as per the Case Conference Report and Order requiring the applicant to provide submissions 30 days prior to the hearing which was scheduled for March 7, 2025. The respondent had a diagnosis provided and did not act in any manner to substantiate this diagnosis. In fact, the respondent proceeded to a hearing on the basis that the applicant’s counsel did not make a clear and concise argument for the applicant regarding this diagnosis.

34I find that the respondent should have known that the applicant was diagnosed with a concussion on or about December 21, 2021 and should have been removed from the MIG, and all treatment plans should have been re-examined with this new lens. I find the actions of the respondent to be imprudent and denied the applicant with needed care outside of the MIG.

35I find the respondent is liable able to pay an award on the total amount payable of outstanding benefits.

Interest granted

36I find that the applicant is entitled to interest on any overdue payment of benefits

ORDER

37I find that the applicant has demonstrated that her injuries are not predominantly minor and is therefore not subject to the MIG limits.

38I find that the applicant is entitled to the following treatment plans and assessments:

i. As proposed by Brampton Physiocare and Wellness Centre:

(a) $1,962.00 for chiropractic services, in a treatment plan submitted April 26, 2022;

(b) $1,660.02 for physiotherapy services, in a treatment plan submitted November 15, 2022;

(c) $4,205.26 for physiotherapy services, in a treatment plan submitted February 14, 2023; and

(d) $2,000.00 for a psychological assessment in a treatment plan submitted March 29, 2022.

ii. $2,000.00 for a chronic pain assessment, proposed by Ortho Neuro Physiocare in a treatment plan/OCF-18 (“plan”) submitted October 27, 2022.

39The respondent liable to pay an award on the total amount payable of outstanding benefits plus interest under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.

40The applicant is entitled to interest on any overdue payment of benefits.