Co-operators has lost an Ontario LAT fight over post-104 income replacement benefits after the tribunal sided with the claimant's medical experts over the insurer's.
In a decision released May 28, 2026, the Licence Appeal Tribunal awarded Karen Whiting weekly IRBs of $168.59 from August 24, 2023 onward, plus interest. Adjudicator Mary Henein Thorn found Whiting met the post-104 complete inability test under section 6 of the Statutory Accident Benefits Schedule. The case is Whiting v. Co-operators General Insurance Company, 2026 CanLII 51019 (ON LAT).
Whiting was injured in a July 18, 2021 motor vehicle accident. She had worked as a receptionist at a group medical office for four years before the crash. She testified she sustained a concussion, traumatic brain injury, neck and back pain, headaches, photophobia, sleep disturbance, and cognitive difficulties.
She returned to work post-accident with extensive accommodations - reduced hours, dim lighting, frequent rest breaks - during a quieter COVID-era period. When restrictions lifted and the office returned to normal volume, her employer's December 29, 2022 letter recorded ongoing concerns with her concentration, pace and skill. She was terminated on August 22, 2022.
Co-operators argued Whiting could maintain employment, pointing to annual pay raises and earlier praise letters from her employers. It also questioned the concussion diagnosis and challenged her credibility, citing inconsistencies in her reporting.
The adjudicator rejected those arguments. She preferred the opinions of the applicant's section 25 assessors - neurologist Dr. Manu Mehdiratta and physiatrist Dr. Harpreet Sangha - both of whom diagnosed concussion with post-concussive syndrome and concluded Whiting had a complete inability to work in any occupation suited to her education, training or experience. Neuropsychologist Dr. Hiten Lad reached the same conclusion.
The tribunal gave little weight to Co-operators' experts. Neurologist Dr. Garry Moddel disagreed with the emergency room concussion diagnosis but, the adjudicator noted, had not updated his education on concussions and provided no comprehensive analysis. Physiatrist Dr. Deborah Lynn Rabinovitch's examination was found to be incomplete - she only assessed the neck and back, deferring headaches, and "simply relied on the applicant's subjective reporting on the day of the assessment."
The decision also included a procedural ruling on expert witness evidence. The applicant initially advised her vocational expert Mr. Marcus Bachmann would not testify but his report would be relied upon. Co-operators objected, pointing to the Divisional Court rulings in Vivekanantham v. Certas Direct Insurance Company and Plante v. Economical Insurance Company. The adjudicator ruled that because Bachmann was on the applicant's final witness list, allowing his report without cross-examination would be procedurally unfair. Bachmann ultimately appeared and testified.
On credibility, the adjudicator acknowledged Whiting had difficulty recounting the accident but found this consistent with her documented memory and concentration impairments rather than a credibility problem.
Co-operators did not commission a vocational assessment to counter Bachmann's evidence. It rested on its section 44 medical assessors' opinions that Whiting's impairments did not preclude suitable employment. The tribunal found this insufficient.
Whiting is also entitled to interest under section 51 of the Schedule.
