Citation: Whiting v. Co-operators General Insurance, 2026 ONLAT 25-006918/AABS

Licence Appeal Tribunal File Number: 25-006918/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:

Karen Whiting

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Mary Henein Thorn

APPEARANCES:

For the Applicant: Adam Little, Counsel Tudor Gagea, Counsel

For the Respondent: Daniel M. Himelfarb, Counsel Bianca Hosseini, Counsel

Court Reporters: Christian Ralladi, Glory Emanerame

HEARD by Videoconference: March 9, 10 & 11, 2026

OVERVIEW

1Karen Whiting, the applicant, was involved in an automobile accident on July 18, 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:

i. Is the applicant entitled to an income replacement benefit (“IRB) in the amount of $168.59 per week from August 24, 2023, to date and ongoing?

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

3At the start of the hearing, the respondent submits the applicant did not provide the particulars for the award claim after receiving the log notes pursuant to the CCRO. Subsequently, the applicant withdrew the issue of a s.10 award.

4The respondent raised the issue of an overpayment in the amount of $1,401.61, but it is not listed as an issue in dispute, and the respondent simply flagged it for background purposes. Since it was not added as an issue in dispute, I will not give it any further consideration as part of this decision.

RESULT

5The applicant is entitled to a post-104 IRB benefit in the amount of $168.59 from August 24, 2023, to date.

6The applicant is entitled to interest.

Procedural Issues

The applicant’s Book of Authorities is allowed

7The respondent’s book of authorities is admitted pursuant to Rule 9 of the Licence Appeal Tribunal Rules, 2023 (“Rules”).

8At the start of the hearing, the applicant sought to exclude the respondent’s book of authorities because it was filed outside the 21 day timeline in the Case Conference Report and Order (“CCRO”) dated September 22, 2025, and as prescribed under Rule 9.4.3.

9Rule 9.4.3 specifically provides that the respondent was required to file with the Tribunal, and serve on the applicant, a copy of the evidence and authority brief it intended to rely on, no later than 21 days before the hearing. Rule 9.4.4 provides that the Tribunal may consider late-filed materials after hearing the parties’ submissions on the relevant factors set out in Rule 9.3.

10The respondent submits the Brief of Authorities was served on the applicant on March 6, 2026, the eve of the hearing. The cases within its Brief of Authorities are Appellate level decisions, the applicant ought to be familiar with these cases already and if not, this hearing is a five-day hearing which provides sufficient time to review them, there isn’t any prejudice to the applicant.

11After hearing the parties’ submissions, I find that the applicant has not persuaded me that she has suffered any prejudice by the late filing of the respondent’s Brief of Authorities. I do not find that the brief is evidence. I also agree with the respondent that the cases are public and accessible to the applicant, therefore there isn’t an element of surprise. The respondent’s Book of Authorities is admissible.

Records are Admissible

12The respondent objected to the admissibility of the following records: updated records from Rehabilitation Support Worker Ms. Anni Papadopoulos dated October 28, 2025, November 11, 2025, November 25, 2025, December 2, 2025, December 9, 2025, January 7, 2025, January 13, 2026, and January 20, 2026. It also objects to the admissibility of the Occupational Therapy In-Home Assessment Report by Occupational Therapist Ms. Katelin Bogensberger, dated June 27, 2024, and the Ontario Disability Support file which contains medical evidence dated March 31, 2025. It submits it received these documents on January 19, 2026, in an email with links, which when accessed did not open the documents. As a result, the respondent argues it did not receive the records.

13Further, the respondent strongly objects to the admission of a rebuttal report of Dr. Manu Mehdiratta dated September 25, 2025, served on it by the applicant on January 19, 2026, because it was not able to seek a rebuttal from its experts due to the late filing.

14The respondent argues the applicant has not been complaint with the CCRO timeline pursuant to Rule 9.4.3 and therefore none of these records should be admissible.

15The applicant takes the position she has been complaint with the CCRO and provided the records pursuant to the Rules. She submits that the respondent made no mention of the broken links and did not make a request for the documents to be resent. She further submits Ms. Papadopoulos has been treating the applicant on an ongoing basis, the most up to date records were provided as soon as they were received to the respondent for the purpose of transparency and completeness. According to the applicant, the records do not provide any stark new information and are short to review, they could have easily been reviewed, and the respondent had enough time to get a rebuttal report if it so chose. She submits there isn’t any prejudice to the respondent. Regarding Dr. Mehdiratta’s updated report, as soon as the applicant received it, she sent it to the respondent. She is unsure why Dr. Mehdiratta took so long to send it to her if the report was dated September 25, 2025.

16The records are admissible. I find all of the records were provided to the respondent on or before January 19, 2026, which is well within the 21 day timeline specified in the CCRO. The applicant conceded the report of Dr. Mehdiratta was exchanged outside of the CCRO timelines, however, that report as not in the applicant’s possession until January 19, 2026, therefore it was outside of the applicant’s ability to provide it sooner. If the respondent was unable to access the documents, it was incumbent upon them to notify the applicant, once the hyperlinks were received, it did not do so. I also find the respondent had more than sufficient time to request an expert opinion from its assessors if it chose. The updated report from Dr. Mehdiratta was received in January and the hearing was not scheduled until March 9, 2026.

Exclusion of Vocational Assessor Mr. Marcus Bachmann’s Testimony and Report

17Mr. Bachmann was listed on the applicant’s final witness list, he must testify in order to be cross-examined, otherwise his report would be excluded for the hearing. Mr. Bachmann did appear and provided testimony at the hearing.

18The respondent raised an objection at the start of the hearing to the admission of a report by Vocational Assessor Mr. Bachmann or allowing his testimony as an expert witness at the hearing for the following reasons;

i. Mr. Bachmann was retained and signed an expert duty form 53 to be an expert for the applicant’s tort claim. One year after the completion of his report he signed an Acknowledgement of Expert Duty Form to appear before the Tribunal for this hearing, given that he was retained for the applicant’s tort claim, he should not be able to provide an opinion for the Schedule;

ii. Secondly, one of the resources he used to form his opinion was the contents of an Examination Under Oath (“EUO”) which was not provided to the respondent. The respondent submits the applicant waived the deemed undertaking rule when it provided the EUO to Mr. Bachmann as part of the documents he reviewed to form his opinion. The withholding of the EUO breaks the disclosure rules and is highly prejudicial to the respondent; and

iii. Lastly, the applicant listed Mr. Bachmann as a witness to appear at the scheduled hearing in two witness lists which were sent to the respondent in emails dated January 22, 2026, then again on February 13, 2026. At the start of the hearing the applicant advised Mr. Bachmann would not be testifying at the hearing, rather the applicant will rely on his report only. The respondent argues this is highly prejudicial to the respondent because it is unable to cross examine him on his findings, particularly the EUO that has not been provided to it and now it is too late for the respondent to summons Mr. Bachmann.

19The applicant submits there are no Rules or case law that says the same expert cannot be relied on for a tort claim and for the Schedule. The Acknowledgement of Expert Duty Mr. Bachman has signed to appear for the hearing is sufficient.

20Secondly, the applicant submits that the EUO transcript is not relevant to this proceeding, it is covered by the implied undertaking rule, and it is not typically delivered to the respondent. It was not requested by the respondent at the case conference, and it is not a requirement by the Schedule to exchange it.

21Lastly, the applicant is entitled to adjust its witness list as she deems necessary. If the respondent wanted to ensure the cross examination of Mr. Bachmann at the hearing, the respondent should have summonsed him.

22Prior to making a ruling, I pointed the parties to the following cases and asked for further submissions:

i. Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198

ii. Plante v. Economical Insurance Company, 2024 ONSC 7171

23The respondent argues in both cases the rules of natural justice were not served and the Divisional Court ruling is clear. In the matter of Vivekananthan v. Certas Direct Insurance Company a summons was served on the expert, and he refused to attend the hearing to testify, and his report was still accepted into evidence. In the matter of Plante v. Economical Insurance Company the applicant’s witness failed to return for cross examination after a break, which the Divisional Court found was procedurally unfair and the expert opinion should not have been taken into consideration. It submits that, similarly, if the report of Mr. Bachmann was allowed into evidence without his appearance to testify and be cross-examined, this would be a breach of procedural fairness and prejudicial to the respondent.

24The applicant submits Mr. Bachmann’s opinion as an expert is vital for the applicant’s case and it would be prejudicially unfair to exclude his report from the hearing. It is the applicant’s position that neither Divisional Court decision cited above is relevant to this hearing. Mr. Bachman has not been summonsed and he did not refuse to appear. He has not refused to be cross-examined, nor did he attend the hearing and leave prior to being cross examined as was the case in the matters before the Divisional Court. Therefore, the applicant submits that Mr. Bachmann’s report should be allowed into evidence without his attendance at the hearing.

25I find the fact that Mr. Bachmann was retained for a tort claim and then a year later signed an Acknowledgment of Expert Duty to appear at the Tribunal is relevant to this hearing. It is my opinion that if qualified as an expert, that expert can speak to both matters if the appropriate Acknowledgment of Expert Duty has been signed and served. In this matter Mr. Bachmann has signed and served an Acknowledgement of Expert Duty form pursuant to Rule 10.2.

26I find that the respondent had grounds to expect Mr. Bachmann to give evidence at the hearing as he appeared on the final two witness lists provided by the applicant shortly before the hearing. There was no reason for the respondent to request a summons in these circumstances as they expected the witness to appear. It was not until the applicant announced at the start of the hearing that he would not be providing testimony that the respondent became aware of this, and in my view it was prejudiced because it was not able to cross-examine the witness on his opinion.

27I am bound by the decisions of Plante and Vivekanantham, and find that since Mr. Bachmann was listed on the applicant’s final witness list, the respondent expected to be able to cross-examine him, it would now be prejudicial to the respondent to allow the report without his cross-examination.

28Therefore, I ruled the applicant must either produce Mr. Bachmann to give testimony at the hearing or the report would not be admitted into evidence as it would be procedurally unfair to the respondent. As a result, the applicant decided to have Mr. Bachmann appear at the hearing.

ANALYSIS

Post-104 Week IRB

29I find that the applicant has met her burden and demonstrated, on a balance of probabilities, that she meets post-104 IRB test. The applicant is entitled to IRBs in the amount of $168.59 from August 24, 2023, to date.

30To 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.

Essential Tasks of Pre-Accident Employment

31The applicant was employed as a receptionist at a group medical office for four years prior to the accident. She was working at a busy office, her duties included front-facing patient services, recording patient history, filing, registration, faxing, ingoing and outgoing calls, scheduling, calculating medication quantities for refills, roster forms, reconciling invoicing, fax/scan, long hours in front of a computer screen and phone use.

32Post-accident the applicant was entitled to some pre-104 IRB payments which stopped due to her post-accident earnings being higher than her entitlement to IRB. The applicant received a letter informing her of the stoppage from the respondent on February 7, 2022. As a result of having qualified for pre-104 week IRB, she would be entitled to a post-104 week IRB if she meets the test of having a complete inability test as mentioned in paragraph 30.

33I accept the applicant’s testimony and reporting to the assessors as sufficient to establish the essential tasks of her pre-accident employment, as set out above. These reception and administrative support tasks required dealing with the public, working in a fast-paced environment, working with office technology, paying attention to detail, multitasking and organization.

Substantial Inability to Perform Essential Tasks

34Prior to the accident the applicant testified she had no pre-existing injuries she sustained the following injuries as a result of the accident; concussion, pain in her neck, shoulder stiffness, low back pain, neck pain, headaches, light sensitivity (photo phobia), tingling, nausea a traumatic brain injury and a diagnosis of a concussion. She testified she has cognitive and memory retention issues, dizziness, she is easily distracted, disturbed sleep, heightened sensitivity to sounds, anxiety, decreased concentration and she is overwhelmed easily when given to many tasks at the same time.

35The applicant testified that following the accident, she experienced significant physical and psychological limitations that rendered her unable to perform the essential tasks of her pre-accident employment. Post-accident she attempted to return to work with accommodations, modified duties and reduced hours. She testified that although she was employed, post-accident, at the medical office, it was during the time of COVID where unusually the office was very quiet, other staff were able to take on some of her duties and her employers were overly understanding and accommodating to her needs. Some examples of how she was accommodated included reduced or modified work hours, taking as many breaks as needed, laying down to rest at any time, dimming the lights or completely turning them off, phone ringer turned off, and other accommodations. However, even given those accommodations, when the COVID restrictions were lifted and the office returned to normal functioning, she was not able to overcome her impairments and perform her job duties as expected which resulted in the termination of her employment on August 22, 2022.

36The applicant submitted the assessment reports of Dr. Mehdiratta, Neurologist and his report dated May 9, 2024; a Physiatrist Dr. Harpreet Sangha and his report dated June 25, 2024; a Neuropsychologist Dr. Hiten Lad and his report dated July 11, 2024; Anni Papadopoulos a Registered Social Worker and her clinical notes, and a Vocational Expert, Mr. Marcus Bachmann and his report dated December 12, 2024, in support of her entitlement.

37The respondent disagrees with the applicant’s position on entitlement and submits the applicant has demonstrated she can maintain employment post-accident. It points to pay increases every year from the applicant’s employers and letters praising her work.

38It also submits there are credibility issues that have influenced the opinions of the assessors, creating biased opinions. It submits that the applicant’s recount of occurrences is not substantiated by any objective evidence. The respondent also questions whether the applicant suffered a concussion, based on the opinion of its experts.

39It relies on the opinions of Neurologist Dr. Galit Kleiner and his report dated March 22, 2022; Dr. Zeeshan Waseem and his report dated January 19, 2023; Dr. Christopher Hope and his report dated June 16, 2023; Dr. Hiten Lad (Neuro Psychologist) and his report dated July 11, 2024, Dr. Rehan Dost (Neurologist) and his report dated April 28, 2025; Dr. Deborah Lynn Rabinovitch, Physiatrist and her report dated March 5, 2024 and an addendum report dated October 9, 2024; Dr. Garry Moddel Neurologist and his report dated March 5, 2024 and an addendum report dated October 22, 2024; Ms. Cynthia Cresak, Vocational Assessor and her Labour Market Survey Report dated March 5, 2024; and Dr. Suitor Chiropractor and his Function Abilities Assessment dated March 5, 2024.

40Dr. Mehdiratta opined the applicant suffered a concussion with post-concussion symptoms which include chronic pain and chronic headaches. His opinion was based on the guidance of the Ontario Neurotrauma Foundation Guideline for Concussion/Mild Traumatic Brain Injury & Persistent Symptoms -Third Edition (2018). Since the applicant met 3 of the 5 indicators outlined in the Guideline, he agreed with the emergency room doctor that the applicant suffered a mild Traumatic Brain Injury (“TBI”) and a cerebral concussion. He opined based on his assessment and the impairments she suffers, the applicant has a complete inability to work in any occupation for which she is reasonably suited by education, training or experience.

41Dr. Sangha also concluded, after examining the applicant, that she suffers from a concussion because she meets the American Congress of Rehabilitation Medicine (“ACRM”) criteria with post-concussive syndrome including disequilibrium, hyperacusis, photophobia, disordered sleep, psycho-emotional distress, cognitive changes and cognitive and generalized fatigue. He also opined the applicant’s prognosis is poor and she has a complete inability to work in any occupation for which she has been reasonably suited by education, training or experience due to her diminished and functional tolerances.

42I did not find the testimony of Dr. Modell compelling, and I give his report little weight. Dr. Moddel testified he did not know if the applicant hit her head at the time of the accident, and he disagreed with the emergency room doctor’s diagnosis of a traumatic brain injury and/or concussion without providing a detailed explanation as to why he disagreed with the findings. It was his testimony and overall opinion that emergency room doctors are not trained to diagnose concussions, therefore they got it wrong, and he did not provide a comprehensive analysis as to why this was his opinion. I also find he has been largely focused on the assessment and treatment of strokes for most of his practice and by his own admission he has not updated his education on concussions. Lastly, I find there is no analysis and reasoning in his report to support his opinion. He concludes the applicant does not meet the IRB test and is able to work.

43I am also not persuaded by the testimony and the findings of Dr. Rabinovitch. I find her examination is incomplete and her findings do not address all of the applicant’s symptoms. She testified that when she examined the applicant, she only considered the injuries to the applicant’s neck and back and deferred the assessment of headaches to the appropriate medical specialist, as it is outside of her scope. It was her testimony that the reason she only assessed those areas is because those were the only complaints the applicant reported, and she did not inquire further during her interview with the applicant. Dr. Rabinovitch indicates in her report that she reviewed an extensive number of documents pertaining to the applicant’s medical history. The records include clinical notes and records of Quinte Health Care-Belleville General Hospital, which indicates a diagnosis of a concussion and a TBI, the report of Dr. Galit Kleiner dated March 22, 2022, which indicates the applicant had a possible traumatic brain injury, and she also lists the employment file from Dundas East Medical Clinic which also notes the applicant’s concussion. Dr. Rabinovitch has a heading in her report called CT Head/Cervical Spine, but she does not comment on the concussion diagnosis. She concludes there are no objective findings to support the applicant’s physical complaints, and it is her opinion the applicant does not meet the test for a post-104 IRB.

44I find that Dr. Rabinovitch did not conduct a complete and thorough examination and did not show how she took all of the applicant’s impairments into consideration before forming an opinion. I find although there are numerous physical impairments identified by other assessors and reported by the applicant, Dr. Rabinovitch did not analyze those findings and provide an opinion as to why within her expertise she finds the applicant does not meet the test for IRB. I find she simply relied on the applicant’s subjective reporting on the day of the assessment, conducted a physical examination and simply concluded the applicant has a complete ability to work. Without an in depth analysis and the reasons for her disagreement with the other assessors, I am unable to give her report much weight.

45I prefer the opinions of Dr. Mehdiratta and Dr. Sangha over those of Dr. Moddel and Dr. Rabinovitch as I find the section 25 assessors provided a more comprehensive assessment of the applicant and their reasoning as to why the applicant meets the test for IRB. I am not persuaded by of Dr. Moddel’s testimony as I find his testimony was unclear and he did not seem to be familiar with the applicant’s specific case and did not point to the reasons why applicant did not meet the test, he simply stated she is able to work which is not sufficient enough. I also find Dr. Rabinovitch’s assessment was very brief, she did not question the applicant about the impairments found her medical records and I found her testimony unpersuasive and without reasoning as to why the application does not meet the test for IRB.

46Dr. Lad diagnosed the applicant with somatic symptom disorder with predominant pain, persistent, adjustment disorder with mixed anxiety and depressed mood, specific phobia, situational type, (passenger anxiety while in a motor vehicle) and query post-traumatic stress disorder. He also noted in his report the applicant presented with a lower-than-average ability for sustained cognitive activity, she requested numerous breaks, and her clinical presentation highlighted an individual who was very somatically pre-occupied and distressed, and unable to focus on the testing and manage the rigours of neurocognitive testing. As a result of his assessment, he determined the applicant meets the test for post-104 IRB.

47Regarding the respondent’s argument that the applicant has been inconsistent with her subjective reporting, I find the applicant has had some difficulty recounting the events of the accident and has struggled to articulate what her impairments are. However, I disagree with the respondent that it is a credibility issue. It is my opinion this behavior is in line with the expert opinion and the applicant’s testimony that she has ongoing issues with memory recall and being easily distracted.

48I agree with the respondent, upon examination of the employer’s performance review letters dated December 20, 2018, December 13, 2019, December 23, 2020, August 31, 2021, authored by her employers Dr. Ciara Brown and Dr. C.E (“Beth”) Perrier, that each letter speaks highly of the applicant’s work performance and does not point to any concerns. However, following the accident, I note that the review letters start to cite challenges and performance concerns consistent with the applicant’s testimony. The letter dated December 22, 2021, notes “Despite the challenges you have faced, you have continued to be an exceptional part of our team”. The following letter dated September 26, 2022, indicates the applicant has not recovered enough to work the 70 work hours biweekly. On December 21, 2022, the letter indicates the applicant continues to have challenges. On December 29, 2022, a letter from the applicant’s employers outlines their concerns about her ability to perform her job duties. Her employers note that although they are committed to doing everything they can to support her in her recovery, her performance and skill has suffered due to her impairments. They indicate the applicant struggles with concentration, pace and skill. She also has difficulty with communication, and she is unable to work long hours.

49The applicant further testified that when the COVID restrictions lifted, the office became busier, her peers were no longer able to take on some of her duties and her employers could no longer provide accommodations and needed her to rise to the expected job duties. On June 28, 2023, a performance review was conducted and her employers indicated discussion with the applicant about her concussion side effects, her difficulty multitasking, difficulty with over-stimulation, and a plan to work towards a full workday covering all of the job duties or a meeting in early August to discuss a transition plan. The applicant was subsequently terminated and has been unable to work since then.

50Treating Rehabilitation Social Worker Ms. Papadopoulos’s documented notes continuously supports the applicant’s testimony and the findings of the assessors regarding the applicant’s physical and psychological impairments. She testified that the applicant suffers from noise and light sensitivity and has ongoing migraines which makes her nauseous. The applicant often becomes overwhelmed when there is a requirement to multi-task, and she often loses focus which causes her to get frustrated. Simple tasks such as attending a grocery store are very difficult for the applicant. The bright lights, stimulating environment and music playing in the store greatly impacts the applicant’s impairments to the point that Ms. Papadopoulos has observed the applicant leaving the store before completing her shopping.

51Lastly, Mr. Marcus Bachmann observed some of the same issues during his assessment. The applicant had a diminished tolerance to light and postural tolerance. As such she required many breaks, complained of a headache and declined the completion of a few tests. The applicant also had some difficulty remembering some of her employment history.

52To assess the applicant, Mr. Bachmann reviewed her medical file, performed vocational testing and did an aptitude test. He also did a pre-disability profile vs. post-accident. He opined that due to the applicant’s chronic pain, mental health disability, ongoing headaches and cognitive issues, her place ability factor is difficult and that there are next to no positions that she would be suited for by way of education, training or experience with her impairments.

53The respondent did not provide a vocational assessment in contrast to the opinion of Mr. Bachman. It simply takes the position that the section 44 assessors found the applicant’s impairments do not preclude her from engaging in any employment or self-employment for which they are reasonably suited by education, training or experience.

54I am persuaded by the applicant’s testimony, the findings of the section 25 assessors and the opinion of Mr. Bachmann that the applicant has a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

55Therefore, I find that the applicant has proven on a balance of probabilities she is entitled to a post-104 income replacement benefit. I find she has met her burden and proven she suffers a substantial inability to perform the essential tasks of her pre-accident employment. She is entitled to a post-104 IRB in the amount of $168.59 from August 24, 2023, to date.

Interest

56Given that the applicant has demonstrated an entitlement to a post-104 IRB, I find she is entitled to interest, pursuant to s. 51 of the Schedule.

ORDER

57The applicant is entitled to a post-104 IRB at the rate of $168.59 per week from August 24, 2023, to date and ongoing. She is also entitled to interest, pursuant to s. 51 of the Schedule.