Citation: [JTAH] v. Co-operators General Insurance Company, 2026 ONLAT 24-010523/AABS

Licence Appeal Tribunal File Number: 24-010523/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:

[JTAH] (A minor by their litigation guardian, [HIH])

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Ognjen Miketic, Counsel

For the Respondent: Julianne Brimfield, Counsel

HEARD By way of written submissions

OVERVIEW

1[JTAH], the applicant, was involved in an automobile accident on July 28, 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:

1. 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?
2. Is the applicant entitled to $1,250.00 for chiropractic services, proposed by Oxford Spine Center in a treatment plan/OCF-18 (“treatment plan”) submitted May 25, 2023?
3. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

1. The applicant’s accident-related injuries are predominantly minor, and therefore subject to the MIG and its $3,500.00 funding limit.
2. As I have found that the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plan is reasonable and necessary.
3. As no payments are owing, no interest is due.
4. The applicant is not entitled to an award.
5. The application is dismissed.

ANALYSIS

Applicability of the MIG

4I find that the applicant has not established on a balance of probabilities that he sustained injuries as a result of the accident that warrant his removal from the MIG.

5Section 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.”

6An 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.

Psychological Impairment

7I find that the applicant did not establish on a balance of probabilities that he suffered a psychological impairment to warrant his removal from the MIG.

8The applicant submits that he should be removed from the MIG because he experienced post-traumatic symptoms including fear of travelling by car as a result of the accident.

9The respondent submits that the applicant has not met his onus to prove that he suffered from a psychological impairment as a result of the accident, because his submissions are not supported by the evidence provided for this hearing.

10The evidence reveals that the applicant was an infant under the age of 2 at the time of the accident. The OCF-3, dated August 9, 2022, was prepared by Dr. Jamal Alaloul, chiropractor, who noted that the applicant was crying, not sleeping, and not feeding, and identified Anxiety Disorder, non-specified and non-organic sleep disorder among the applicant’s injuries. However, Dr. Alaloul is a chiropractor, and psychological diagnoses are outside of his scope of practice.

11The applicant attended the London Health Sciences Emergency Department with symptoms of a viral respiratory infection a little over one month after the accident. The applicant’s mother told an emergency department physician that the applicant had been distressed when traveling in the car since the accident and the family believed that he was “traumatized.” The Clinical Notes and Records (“CNRs”) of the London Health Sciences Centre reveal that a hospital social worker provided information about potential play therapy at Merrymount Child and Family Services in response to the physician’s request.

12As the applicant has not directed me to evidence of subsequent psychological complaints, or that he attended play therapy or received any other psychological assessment or treatment, I find that the applicant has not met his onus to prove that he has a psychological impairment as a result of the accident that warrants his removal from the MIG.

13The applicant remains subject to the MIG and its $3,500.00 funding limit.

Section 38

14The applicant argues that his injuries should not fall within the MIG as the respondent’s denial of the treatment plan for chiropractic services submitted on May 25, 2023 was non-compliant with s. 38(8) of the Schedule. As such, he submits that the consequences of s. 38(11), which includes removing him from the MIG, have been triggered.

15Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

16If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
2. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

17I do not accept the applicant’s argument that an improper denial under s.38 automatically removes the applicant from the MIG. While the parties did not refer me to this decision, I am bound by Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (“Zheng”). In Zheng, the Divisional Court held that s. 38 refers to the specific treatment plan in question, and s. 38(11) does not impose a permanent prohibition on an insurer with regard to the MIG.

18An improper denial, therefore, does not result in the applicant being removed from the MIG entirely. I will, however, address the issue of s. 38(8) with respect to the treatment plan below.

19As I have found that the applicant remains within the MIG, it is not necessary for me to consider whether the treatment plan is reasonable and necessary.

20However, as the applicant submits that the respondent’s denial notice does not comply with s. 38(8) of the Schedule, I will address whether the treatment plan is payable under s. 38(11).

Is the treatment plan for $1,250.00 for chiropractic services submitted on May 25, 2023 payable under s. 38(11)?

21I find that the treatment plan is not payable under s. 38(11).

22The applicant submits that the May 29, 2023 denial letter for the treatment plan for $1,250.00 for physiotherapy services, submitted on May 25, 2025 and prepared by Dr. Alaloul, did not comply with s.38(8) because it did not provide a medical reason for the denial. The respondent argues that the May 29, 2023 denial letter complies with s.38(8), and the treatment plan is not payable.

23The respondent argues that the denial is valid, because an insurer is not required to fabricate medical reasons where the applicant has not provided medical records to support the treatment plan.

24I find that the respondent’s May 29, 2023 denial letter complies with s. 38(8), because it is a clear and unequivocal denial. The letter informs the applicant that the MIG limit has been exhausted, and that it has not received any medical documentation to support that the applicant sustained injuries which require treatment outside of the MIG. It explained the exemptions from the MIG, and requested that the applicant provide records from his family doctor from the date of the accident onwards. Further, the letter provided information about the applicant’s right to dispute the denial and the process by which to do so.

25Overall, I find that the May 29, 2023 denial letter complies with s.38(8) because it is sufficiently clear and detailed for an unsophisticated person to make an informed decision whether to dispute the denial.

26Accordingly, the treatment plan is not payable under s. 38(11).

Interest

27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

Award

28The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

29The applicant submits that he is entitled to an award because the respondent denied the treatment plan in dispute. As the applicant has not made submissions or directed me to evidence that the respondent’s conduct met the bar of unreasonable conduct as set out above, I find that the applicant has not met his onus to prove on a balance of probabilities that he is entitled to an award.

ORDER

30I find that:

1. The applicant’s accident-related injuries are predominantly minor, and therefore subject to the MIG and its $3,500.00 funding limit.
2. As I have found that the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plan is reasonable and necessary.
3. As no payments are owing, no interest is due.
4. The applicant is not entitled to an award.
5. The application is dismissed.