[AAH] v. Co-operators General Insurance Company, 2026 CanLII 34302

Citation: [AAH] v. Co-operators General Insurance Company, 2026 ONLAT 24-010461/AABS

Licence Appeal Tribunal File Number: 24-010461/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:

[AAH] (A minor by their litigation guardian, [HAH])

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Mobina Khan, Counsel

For the Respondent: Julianne Brimfield, Counsel

HEARD: By way of written submissions

OVERVIEW

1[AAH], the applicant, was involved in an automobile accident on July 28, 2028, 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 limit?
2. Is the applicant entitled to $2,198.00 for chiropractic services, proposed by Oxford Spine Center in a treatment plan/OCF-18 (“treatment plan”) submitted September 13, 2022?
3. Is the applicant entitled to the assessments proposed by Meditecs, as follows: i. $2,986.00 for a functional ability evaluation assessment, in a treatment plan submitted February 4, 2024; ii. $4,011.50 for a chronic pain assessment, in a treatment plan submitted February 4, 2024; and iii. $8,221.00 for neuropsychological assessment, in a treatment plan submitted February 4, 2024?
4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

1. The applicant is 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 plans are 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 Minor Injury Guideline (“the MIG”)

4I find that the applicant has not established that he has 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.

Pre-existing condition

7I find that the applicant has not established on a balance of probabilities that he had a pre-existing condition that warrants his removal from the MIG.

8The applicant submits that he should be removed from the MIG because he has “significant pre-existing conditions.” However, the applicant has not identified any pre-existing conditions or directed me to evidence of a documented condition or medical evidence stating that the condition precludes recovery from his accident-related injuries if he remains within the MIG, as required for removal by s. 18(2).

9As a result, I find that the applicant has not met his onus to prove on a balance of probabilities that he has a pre-existing condition that warrants his removal from the MIG.

Physical injuries

10I find that the applicant has not established on a balance of probabilities that he suffered physical injuries as a result of the accident that warrant his removal from the MIG.

11The applicant submits that should be removed from the MIG because he has experienced a concussion and “neurological symptoms” which are inconsistent with his inclusion in the MIG. He relies on the clinical notes and records (“CNRs”) of the London Health Sciences Centre dated December 5 and 6, 2023.

12The respondent submits that the applicant has not met his burden to prove that the applicant has sustained physical injuries as a result of the accident, because the applicant’s medical records do not refer to the accident, and the police report of the accident reveals that none of the vehicle occupants was injured in the accident.

13I agree with the respondent that the evidence does not establish on a balance of probabilities that he sustained accident-related physical injuries that warrant his removal from the MIG. The OCF-18 dated September 13, 2022 included soft tissue injuries, headaches and concussion among the applicant’s injuries, however the OCF-18 was prepared by Dr. Jamal Alaloul, who is a chiropractor and concussion diagnoses are outside of his scope of practice. The applicant also submitted CNRs from [a doctor], that begin on March 2, 2023, more than 7 months after the accident, when the applicant complained of abdominal pain. There are no mentions of the accident in [a doctor’s] CNRs or any of the other medical records provided for this hearing.

14I am not persuaded by the applicant’s submission that he experienced concussion or other neurological symptoms as a result of the accident, because [a doctor’s] CNRs reveal that the applicant first complained of headaches and was diagnosed with a concussion on August 28, 2023, more than a year after the accident, and after the applicant had sustained a blow to the head with a pipe in an assault on August 1, 2023.

15Finally, I find that the applicant has not established that his complaints of asthma and respiratory problems are the result of his accident-related injuries. The CNRs of the London Health Sciences Centre reveal that the applicant sought treatment for asthma on December 5, 2024, which the applicant submits is an indication that he sustained complex physical injuries as a result of the accident. However, the applicant has not directed me to evidence to corroborate that he sustained such injuries as a result of the accident, or that his asthma was related to the accident.

16For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that he sustained physical injuries that warrant his removal from the MIG.

Psychological Impairment

17I find that the applicant did not establish on a balance of probabilities that he sustained a psychological impairment as a result of the accident to warrant his removal from the MIG.

18The applicant submits that he should be removed from the MIG because he suffers from anxiety, and sleep and behavioural problems as a result of the accident.

19The respondent counters that the applicant has not met his onus to prove that he has suffered an accident-related psychological impairment, because the applicant has not provided medical evidence to corroborate his submissions.

20I assign little weight to Dr. Alaloul’s September 13, 2022 treatment plan which identifies anxiety disorder and nonorganic sleep disorder among the applicant’s accident-related injuries, because Dr. Alaoul is a chiropractor, and psychological diagnoses are outside of his scope of practice.

21I find that the evidence does not establish on a balance of probabilities that the applicant suffered a psychological impairment as a result of the accident, because the applicant has not directed me to evidence of complaints of psychological symptoms until more than a year after the accident, and after the above noted assault. [A doctor’s] CNRs reveal that he referred the applicant to a psychiatrist for an assessment on August 29, 2023, noting that the applicant had presented with PTSD symptoms after being assaulted one month earlier.

22For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that he suffered a psychological impairment as a result of the accident.

Conclusion

23For the reasons above, I find that the applicant remains subject to the MIG and its $3,500.00 funding limit.

24As I have found that the applicant remains subject to the MIG and its $3,500.00 funding limit, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.

Interest

25Interest 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

26The 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.

27The applicant submits that he is entitled to an award because the respondent denied the treatment plans in dispute. As the applicant has not made submissions or directed me to evidence that the respondent’s conduct rose to the level of unreasonable conduct 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

28I find that:

1. The applicant’s injuries are predominantly minor, and he is subject to the MIG, and its $3,500.00 funding limit.
2. As I have found the applicant remains within the MIG, it is not necessary for me to consider whether the treatment plans are 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.