Citation: Dixon v. Co-operators General Insurance Company, 2026 ONLAT 24-015707/AABS

Licence Appeal Tribunal File Number: 24-015707/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:

Shorline Dixon

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Kateryna Vlada, Counsel

For the Respondent:

Julianne Brimfield, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Shorline Dixon, the applicant, was involved in an automobile accident on June 26, 2022, 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:

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?

ii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by HM Medical Network Ltd. in an OCF-18/treatment plan (“treatment plan”) dated November 17, 2022?

iii. Is the applicant entitled to $2,200.00 for a driving evaluation assessment, proposed by HM Medical Network Ltd. in a treatment plan dated May 2, 2023?

iv. Is the applicant entitled to $1,289.31 for physiotherapy services, proposed by North Toronto Rehabilitation & Physiotherapy in a treatment plan dated May 18, 2023?

v. Is the applicant entitled to $4,987.56 for physiotherapy services, proposed by North Toronto Rehabilitation & Physiotherapy in a treatment plan dated May 31, 2023?

vi. Is the applicant entitled to $2,460.00 for an orthopaedic assessment, proposed by HM Medical Network Ltd. in a treatment plan dated May 2, 2023?

RESULT

3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

4Since the applicant is subject to the MIG, an analysis of whether the treatment plans are reasonable and necessary is not warranted.

ANALYSIS

MIG

5I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

6Section 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.”

7An 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.

8The applicant’s principal argument is that removal from the MIG is warranted because she has a documented pre-existing injury or condition, and because she a psychological condition.

Documented pre-existing injury

9The applicant submits that she has the following documented pre-existing conditions, that are significantly aggravated due to the accident, precluding recovery within the MIG:

i. Right sacroiliac joint pain and chronic left knee problems for which she underwent arthroscopic surgery in 2016. Following exacerbation due to the subject collision led to a left total knee arthroplasty on July 2, 2024, and a right total knee arthroplasty on January 24, 2025.

ii. Anxiety, aggravated by the accident and leading to further diagnoses of Major Depressive Disorder and Specific Phobia.

10The respondent submits that it does not dispute that the applicant had pre-existing conditions, however, it does not accept the applicant’s position on what those injuries or conditions are. The respondent denies that the applicant had pre-existing documented anxiety. The respondent also denies that there is compelling medical evidence stating that her pre-existing injury or condition precludes recovery if the applicant is kept within the confines of the MIG.

11I first turn to the question of whether the applicant has a pre-existing condition. Upon review, I find, that the applicant’s reference to pre-existing anxiety in an anesthesia consult note in January 2025 does not establish that the applicant had documented anxiety prior to the subject accident because it does not address the period prior to the accident.

12I have also reviewed the consultation report by Dr. Goldhar, dated June 9, 2022 referred to by the respondent. Although not specifically referenced by the applicant, this is the sole medical evidence that pre-dates the accident referred to by either party, so I accept that this report establishes the applicant’s documented pre-existing injuries and conditions. Dr. Goldhar notes osteoarthritis, arthroscopy for left knee due to ligament problem, obesity, and asthma. Dr. Goldhar notes that he also saw the applicant 6 months prior about various pain complaints, that are still ongoing, in the applicant’s back, left hip, and left wrist. Dr. Goldhar opined that these appear to be mechanical pain and also noted right knee pain and swelling.

13Therefore, I accept that these are the applicant’s pre-existing injuries and conditions.

14Turning to the question of whether there is compelling medical evidence stating that the condition precludes recovery if she is kept within the confines of the MIG. As reviewed below in the context of the applicant’s accident-related injuries, which I have found to be limited to chest and breast pain, the applicant has not led compelling medical evidence stating that she is precluded from recovery of her accident-related injury or condition if she is kept within the confines of the MIG.

15The applicant makes arguments relating to an exacerbation of her prior injuries or conditions in the context of compelling medical evidence that she is precluded from recovery within the MIG. I find that these arguments more directly address whether the applicant’s accident-related injuries are predominantly a minor injury for two principal reasons. The arguments are largely not relevant to the test under s. 18(2) and do not lead any medical evidence stating the applicant is precluded from recovery if kept within the MIG. I have considered the applicant’s submissions liberally, in both contexts.

16The applicant submits that she began reporting symptoms affecting her left knee post-accident and explicitly attributed this to the subject accident. I find that this is not supported by a reference to the medical evidence. The applicant refers me to clinical notes and records (“CNRs”) from the applicant’s family doctor dated November 23, 2022 and December 8, 2022. Neither of these referenced CNRs support either the applicant or a medical professional explicitly attributing her left knee complaints to the accident as her submissions suggest. Contrary to the applicant’s position, the respondent refers me to the family doctor’s CNRs dated December 16, 2022 noting the applicant’s complaints of left knee pain over the last few weeks, which only started after returning back from a trip to Trinidad on September 20, and that this was never felt prior. Further supporting the respondent’s position, Dr. Higgins notes in the February 1, 2023 orthopaedic consultation report that the applicant denied any inciting event or trauma related to her knees, there is no reference to any exacerbation as a result of the accident.

17The applicant refers to the family doctor’s CNR dated February 3, 2024 in which the applicant complained of severe left calf pain, noted to be since the accident, for which she attended the emergency department on December 4, 2023. I find that this single complaint in the medical record of accident-related severe left calf pain, made approximately a year and a half after the accident does not establish that there is accident-related exacerbation of the applicant’s knee condition as argued by the applicant. The applicant did not lead evidence of the emergency department visit of December 4, 2023 mentioned in the family doctor’s CNRs relating to this complaint to provide additional context.

18As to the extent of the applicant’s accident-related injuries, the respondent refers me to the note from the emergency department at North York General Hospital where the applicant was taken after the accident. An assessment and chest x-ray imaging were completed. The imaging was normal, and the applicant is noted to have denied neck, head, and back pain. The applicant was discharged with a diagnosis of “MSK chest pain”. Subsequently, the applicant consulted her family doctor on June 29, 2022 in relation to the accident. The applicant’s sole recorded accident-related complaint is of chest wall pain and left breast pain. Accordingly, I find that the evidence establishes musculoskeletal chest pain as the only accident-related complaints made contemporaneously in the medical record to her family doctor, within the first year after the accident. Further, that the emergency department records relating to the accident corroborate that chest pain was the sole complaint. These accident-related injuries are predominantly a minor injury as defined by s. 3(1) of the Schedule.

19The applicant also submits that she experienced persistent and progressively worsening mechanical back pain radiating into her right foot, noted by her family doctor between July 21 and July 23, 2022. As the respondent argues, these notes reveal that the applicant reported an onset just 4 to 5 days prior rather than being caused by the subject accident on June 26, 2022. I further note three observations on review of this evidence. First, there is no mention of these complaints being accident related. Second, the consultation report by Dr. Hart Goldhar, rheumatology and internal medicine, dated June 9, 2022 indicates multiple mechanical pains, including mechanical back pain and degenerative changes in her lumbar spine on review of an x-ray. Dr. Goldhar noted this bothered her at work and recommended generally weight control and taking more time off from work because her work puts a heavy toll on her body. I understand that the applicant returned to work four days post-accident according to an OCF-1 dated July 21, 2022. Third, the applicant refers me to CNRs of the family doctor containing emergency department records from Scarborough Health Network dated June 12, 2024. The applicant complained of lower lumbar pain and was diagnosed with mild sciatic pain. This record notes that the applicant works as a personal support worker and states “unsure if from lifting resident”. While the medical records supports that Dr. Goldhar documented the applicant’s pre-existing injuries and condition, the evidence does not support an exacerbation as a result of the accident, nor did the applicant lead compelling medical evidence stating that the condition precludes recovery if she is kept within the confines of the MIG.

20For the reasons above, on a balance of probabilities, I find that the applicant has not established that she has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if she is kept within the confines of the MIG.

Psychological condition

21The applicant argues she has an accident-related psychological condition warranting removal from the MIG. The applicant relies on a Psychological Assessment Report dated March 13, 2023 resulting from a psychological assessment by Psychotherapist Viktoria Tolmatshov. The applicant is diagnosed with mild Major Depressive Disorder and Specific Phobia (passenger fear).

22The respondent argues that the March 13, 2023 report is not corroborated by contemporaneous medical records because there are no psychological complaints led as evidence in the family doctor’s records. Further, that the diagnoses made by a registered social worker have been given little weight in the past because they are not qualified to make psychological diagnoses. On this point, I note the report indicates that the assessment, interview, tests, and report seem to be completed by Viktoria Tolmatshov. Viktoria Tolmatshov is described as a psychotherapist in the report, and as a registered social worker by the respondent. Further, I note that it appears Dr. Julie Gosselin, C. Psych, reviewed and endorsed the report but the extent of her involvement beyond this is not clearly stated.

23I give little weight to the s. 25 assessment because it is not corroborated by any other medical records. As the respondent submits, there are no psychological complaints in the family doctor’s records. I also note that the applicant argues that Psychotherapist Tolmatshov determined that the applicant’s psychological impairments exceed the MIG, but the report does not provide any opinion on the MIG. Further, the report is not based on any meaningful review of medical records. The report indicates that the CNRs from North York General Hospital dated September 1, 2022 were reviewed. The applicant only referred me to the June 26, 2022 hospital records and I did not come across any reference to a further accident-related hospital visit on September 1, 2022.

24The respondent also argues that the March 2023 report’s conclusions are not supported by the psychometric testing completed for purposes of the assessment. Further, the applicant argues her psychological condition requires a Driving Evaluation Assessment recommended by Viktoria Tolmatshov as a result of the psychological assessment due to the applicant’s reported driving-related anxiety and phobias. The respondent questions Viktoria Tolmatshov’s recommendations because the applicant has reported never having obtained a driver’s licence. This further weakens the opinions of this s.25 psychological assessment report.

25The respondent refers me to the s. 44 psychological assessment conducted by Dr. Shulamit Mor, Ph.D., C. Psych, on October 24, 2024. I give more weight to this report because it completes a more substantial medical file review, is completed by a psychologist and the conclusions are tied to the psychometric testing results, resulting in better internal consistency for its conclusions on the MIG. The report indicates that testing revealed mild or average scores for various psychological symptoms. Dr. Mor concluded that the applicant had some passenger apprehension in a vehicle, but that there was no clinically significant psychological impairment as a result of the accident and that her injuries fell within the MIG.

26For the reasons above, on a balance of probabilities, I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

27Since the applicant is subject to the MIG, an analysis of whether the treatment plans are reasonable and necessary is not warranted.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. There are no overdue benefits on this application.

ORDER

29For the reasons above, I make the following orders:

i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

ii. Since the applicant is subject to the MIG, an analysis of whether the treatment plans are reasonable and necessary is not warranted.