Citation: Tavares v. Co-operators General Insurance Company, 2026 ONLAT 24-015158/AABS

Licence Appeal Tribunal File Number: 24-015158/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:

Kevin Tavares

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Amanda Marshall

APPEARANCES:

For the Applicant: Anjali Duggal, Counsel

For the Respondent: Amanda Lennox, Counsel

HEARD: By way of written submissions

OVERVIEW

1Kevin Tavares, the applicant, was involved in an automobile accident on June 10, 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, 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? The parties agree that the MIG limits have been exhausted.

ii. Is the applicant entitled to the treatment plan/OCF-18 (“plan”) proposed by Mackenzie Medical Rehab Centre, as follows:

i. $2,023.03 for chiropractic services, in a plan submitted on December 7, 2023, and denied on December 18, 2023; and

ii. $200.06 ($423.09 less $223.03) for chiropractic services, in a plan submitted on February 21, 2024, and denied on March 20, 2024?

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

RESULT

3I find 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 limits. He is not entitled to the treatment plans in dispute, or interest.

ANALYSIS

Minor Injury Guideline

4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are capped at $3,500.00 if the insured person sustains impairments that are predominantly a minor injury in accordance with the MIG. 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.”

5In order to be removed from the MIG, an insured person must 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 supported by compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG limits. The Tribunal has also determined that concussion or concussion syndrome, chronic pain with functional impairment, or a psychological condition may be grounds for removal from the MIG. In all cases, the burden of proof lies with the applicant.

6The applicant argues that he should be removed from the MIG based on chronic pain, a pre-existing non-organic sleep condition that was exacerbated by the accident, and a psychological impairment. He relies on the clinical notes and records (“CNRs”) of Dr. Marina Malak, family physician, the OCF-3/Disability Certificate of Peter Counti, chiropractor, and the CNRs of Mackenzie Medical Rehabilitation Inc.

7The respondent submits that the applicant’s accident-related impairments fall within the definition of the MIG as he was diagnosed with sprains and strains which are set out within the definition of a “minor injury”. The respondent contends that the applicant has not been diagnosed with a psychological impairment, nor a sleep disturbance as a direct result of the accident by a qualified practitioner.

Does the applicant sustain a psychological impairment as a result of the accident?

8I find that the applicant does not have psychological impairment as a result of the accident.

9The applicant relies on an OCF‑3 dated July 4, 2023, which lists non‑organic sleep disturbances, stress and anxiety, and sprain and strain injuries. The OCF‑3 was completed by Dr. Counti, a chiropractor, who is not qualified to diagnose psychological conditions. As such, limited weight is afforded to the identification of stress, anxiety, and a non‑organic sleep disturbance on the OCF-3.

10Further, Dr. Malak’s CNRs do not document, reference, or diagnose any psychological condition, nor do they indicate that the applicant was referred for psychological treatment following the accident. In the absence of a diagnosis from a qualified health professional, corroborating clinical findings, or evidence of psychological treatment, I find that the applicant has not established, on a balance of probabilities, the existence of a psychological impairment arising from the accident.

Does the applicant have a pre-existing condition that prevents maximal medical recovery if kept within the MIG?

11I do not find that the applicant has a pre-existing medical condition that prevents maximal medical recovery if kept within the MIG.

12A pre-existing condition will not automatically exclude a person’s impairment from the MIG. Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. To do so, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 on treatment costs under the MIG.

13I find the medical evidence relied upon by the applicant falls short of meeting his onus that he suffers from a pre-existing condition that warrants removal from the MIG.

14The applicant submits that his sleep apnea was exacerbated by the accident and relies on Dr. Malak’s clinical note of August 6, 2023, in which the applicant reported feeling tired all the time since the accident. On July 31, 2023, the records indicate that the applicant reported snoring to Dr. Malak and suggested that he may have been snoring for many years. Dr. Malak referred him for a sleep study. Five (5) months after the accident in November 2023, the applicant was diagnosed with sleep apnea.

15While the family physician’s records do not indicate a diagnosis of sleep apnea prior to the accident, there is also no medical opinion establishing a causal or exacerbating relationship between the accident and the subsequent diagnosis. Further, even if sleep apnea were considered a pre‑existing condition, removal from the MIG requires compelling medical evidence that the condition would prevent the applicant from achieving maximal recovery if treatment were limited to the MIG. No such medical evidence has been provided. Accordingly, I find that the applicant has not established that his sleep apnea warrants removal from the MIG.

Does the applicant suffer from chronic pain as a result of the accident?

16I find that the applicant has not demonstrated on a balance of probabilities that he suffers from accident-related chronic pain with functional impairment to warrant removal from the MIG.

17An insured may be removed from the MIG if they suffer from chronic pain as a result of the accident. However, it is not enough for the insured to have pain over an extended duration of time – it must be accompanied by functional impairment.

18The applicant relies on a letter dated May 15, 2025 from Dr. Dan Shlepakov, a chiropractor at Mackenzie Medical Rehabilitation Centre, which indicates that further treatment is necessary based on reports of persistent pain and stiffness affecting the neck, upper back, lower back, and right shoulder. The letter also notes that the applicant’s pain intensity is reported as high.

19I assign limited weight to Dr. Shlepakov’s opinion. It appears Dr. Shlepakov reviewed treatment records but did not personally assess or treat the applicant, nor did he interview the applicant directly. Additionally, the opinion is inconsistent with the family physician’s CNRs. On July 31, 2023, the applicant attended Dr. Malak’s office and reported involvement in a motor vehicle accident with only mild neck pain. There is no further documentation of musculoskeletal complaints until April 13, 2024, when the applicant reported left shoulder blade spasm, intermittent pins and needles in the left shoulder when sleeping on it, and some neck pain. Subsequent imaging of the cervical spine and left scapula revealed no abnormalities.

20The applicant did not take any time off work following the accident and did not require prescription medication for pain management. Although the applicant asserts that he was unable to participate in extra‑curricular activities, the medical evidence indicates that he sustained an injury while playing baseball on August 17, 2024, a physically demanding recreational activity.

21The ability to remain continuously employed and to engage in baseball is inconsistent with the presence of chronic pain resulting in ongoing functional impairment. While the applicant may experience intermittent pain symptoms, the evidence does not demonstrate that such pain has resulted in a sustained or interference with activities of daily living or functional abilities. As such, the applicant has not established that he suffers from chronic pain with functional impairment sufficient to warrant removal from the MIG.

22As I have found the applicant is in the MIG, it is not necessary to consider if the treatment plans are reasonable and necessary.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is payable.

CONCLUSION

24For the above reasons, I find:

i. The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. Therefore, he is subject to the treatment limits of the MIG.

ii. As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans are reasonable and necessary.

iii. The applicant is not entitled to interest.