[FAH] v. Co-operators General Insurance Company, 2026 CanLII 34341

Citation: [FAH] v. Co-operators General Insurance Company, 2026 ONLAT 24-010405/AABS

Licence Appeal Tribunal File Number: 24-010405/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:

[FAH] (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[FAH], 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 to be decided in the hearing 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 $2,198.00 for chiropractic services, proposed by Oxford Spine Clinic in a treatment plan/OCF-18 (“treatment plan”) submitted September 13, 2022?
3. Is the applicant entitled to $1,250.00 for chiropractic services, proposed by Oxford Spine Clinic in a treatment plan submitted May 25, 2023?
4. Is the applicant entitled to $4,373.10 for a chronic pain assessment, proposed by Meditecs in a treatment plan submitted February 4, 2024?
5. Is the applicant entitled to $3,322.20 for a concussion assessment, proposed by Meditecs in a treatment plan submitted February 4, 2024?
6. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
7. Is the applicant entitled to interest on any overdue payment of benefits?

3Issue #1 above was added as an issue in dispute for the reasons set out in paragraphs 5-7 below.

RESULT

4I 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. The treatment plans are not payable under s. 38(11).
4. As no payments are owing, no interest is due.
5. The application is dismissed.

PROCEDURAL ISSUES

Is the Minor Injury Guideline at issue in the hearing?

5The respondent submits that the applicant bases her entitlement to the treatment plans on the applicant’s injuries falling outside the MIG, despite a MIG determination not being included in the December 12, 2024 Case Conference Report and Order (‘CCRO”) as an issue in dispute. The respondent argues that since all of the disputed treatment plans were denied based on its determination that the applicant was subject to the MIG, the applicant must first prove that the applicant’s injuries fall outside of the MIG. The respondent therefore requests that I make a MIG determination.

6The applicant did not make submissions in reply to address whether the MIG determination should be considered. However, in her submissions, the applicant makes both substantive and procedural arguments with respect to her entitlement to the treatment plans in dispute. The applicant’s substantive arguments include submissions that the applicant should be removed from the MIG to support her arguments that the treatment plans are reasonable and necessary.

7Because both parties have had the opportunity to address the issue of a MIG determination in their submissions, I will first consider whether the applicant is subject to the MIG, and if necessary, whether the treatment plans are reasonable and necessary. I will then consider whether the respondent’s denial letters are compliant with s.38(8).

ANALYSIS

Is the applicant subject to the MIG?

8I find that the applicant has not established on a balance of probabilities that she sustained accident-related injuries that warrant her removal from the MIG.

9Section 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.”

10An 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.

Physical injuries

11I find that the applicant has not established on a balance of probabilities that she sustained physical injuries to warrant her removal from the MIG.

12The applicant submits that she should be removed from the MIG because she sustained a concussion in addition to sprains and strains to the elbow, low back pain and as a result of the accident. She relies on the treatment plans of Dr. Mandeep Alaloul, chiropractor, dated September 13, 2022, and May 25, 2023 and the treatment plans of Dr. Tobias Chung, chiropractor, both dated February 4, 2024. The applicant also relies on the clinical notes and records (“CNRs”) of [a doctor], and the CNRs of the London Health Sciences Centre.

13The respondent argues that the applicant has not met her onus to prove that her accident-related physical injuries fall outside of the MIG because the applicant has not submitted evidence to corroborate that the applicant sustained physical injuries that warrant her removal from the MIG as a result of the accident.

14I find that the evidence does not establish on a balance of probabilities that the applicant sustained a concussion as a result of the accident. I place little weight on the treatment plans of Dr. Alaloul and Dr. Chung, who identify concussion and concussion symptoms among the applicant’s accident-related injuries in their respective treatment plans. Both Dr. Alaloul and Dr. Chung are chiropractors, and concussion diagnoses are outside of their scope of practice.

15The applicant submits that she experienced concussion symptoms including headaches, sleeplessness, and emotional dysregulation after the accident, which have persisted despite attempts at treatment. However, aside from the reporting of symptoms to Dr. Alaloul and Dr. Chung, whose evidence I have discounted for the reasons above, the applicant has not directed me to evidence that she complained of concussive symptoms to any other medical practitioner, or that she underwent a concussion assessment or treatment since the accident. [A doctor’s] CNRs reveal that the applicant first saw him on March 2, 2023, more than seven months after the accident, and neither his CNRs nor the CNRs of the London Health Sciences Centre reveal any mention of the accident, headaches, concussion, or any accident-related injuries.

16The applicant further submits that she has experienced hand pain as a result of a fractured wrist, however the applicant’s wrist injury is first identified as an accident-related injury more than 17 months after the accident, in the treatment plans for a chronic pain assessment and a concussion assessment, which were submitted on February 4, 2024. The applicant did not direct me to evidence contemporaneous with time of the accident that corroborates that she experienced hand pain or sustained a fractured wrist as a result of the accident.

17The remainder of the accident-related injuries set out in the treatment plans are whiplash disorder, and sprains and strain injuries to the applicant’s spine, which I find fall squarely within the definition of Minor Injury set out in the Schedule. The applicant submits that she suffered from ongoing pain, spasms, and fatigue as a result of her physical injuries, however, the applicant has not directed me to evidence that she complained to her family doctor of pain or other symptoms related to these injuries.

18For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that she sustained physical injuries as a result of the accident that warrant her removal from the MIG.

Psychological Impairment

19I find that the applicant has not established that she has a psychological impairment that warrants her removal from the MIG.

20The applicant submits that she has suffered from sleep disturbances and anxiety as a result of the accident. The respondent submits that the applicant has not met her onus to prove that she has sustained a psychological impairment as a result of the accident.

21The applicant relies on the treatment plans of Dr. Alaloul, dated September 13, 2022, and May 14, 2023 which identify non-organic sleep disorder and anxiety disorders among the applicant’s accident-related injuries. The applicant further relies on Dr. Chung’s treatment plans, dated February 4, 2022, which identify signs and symptoms of emotional state and reaction to stress and anxiety disorders, among the applicant’s accident -related injuries. However, both Dr. Alaloul and Dr. Chung are chiropractors and psychological diagnoses are outside their scope of practice, and as such, I assign the treatment plans little weight.

22Further, aside from the reporting of symptoms to Dr. Alaloul and Dr. Chung, whose evidence I have discounted for the reasons above, the applicant has not directed me to medical evidence of an accident-related psychological impairment. While the applicant submits that she received “psychological referrals”, the CNRs of [a doctor] and the London Health Sciences Centre reveal no complaints of psychological symptoms or referrals for treatment.

23For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that she sustained a psychological impairment as a result of the accident that warrants her removal from the MIG.

Conclusion on the MIG

24I find that the applicant’s injuries are predominantly minor as defined by the Schedule and she remains subject to the MIG and its $3,500.00 funding limit.

25As 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.

26However, as the applicant has made submissions that the respondent’s denial letters for the treatment plans are not compliant with s. 38, I will turn to those arguments.

Section 38

27Sections 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.

28If 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 Minor Injury Guideline 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).

Is the treatment plan for $2,198.00 for chiropractic services submitted September 13, 2022 payable under s.38(11)?

29I find that the September 13, 2022 treatment plan for chiropractic services is not payable.

30The applicant submits that the respondent’s September 15, 2022 denial notice does not comply with s. 38(8) because it does not provide medical reasons for the denial.

31The respondent submits that the treatment plan was denied on September 15, 2022 because the treatment plan was eligible for payment within the MIG limit, and the applicant was advised to submit an OCF-23 confirmation of treatment form for payment. The respondent submitted confirmation that the OCF-23 was paid.

32Section 38(5) of the Schedule provides that an insurer may refuse to accept a treatment and assessment plan if the plan describes goods and services to be received or an assessment or examination to be conducted in respect of any period during which the insured person is entitled to receive goods and services under the MIG in respect of the impairment. Section 38(6) provides that an insurer’s refusal to accept a treatment and assessment plan under subsection (5) is final and is not subject to review.

33As a result, I find that the respondent’s decision is final and not subject to review by the Tribunal in accordance with s.38(5) and s.38(6) of the Schedule. As such, the treatment plan for chiropractic services dated September 13, 2022 is not payable under s. 38(11).

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

34I find that the May 25, 2023 treatment plan for chiropractic services is not payable under s. 38(11).

35The applicant submits that the respondent’s denial letter, dated May 29, 2023 is not compliant with s 38(8) because it does not provide sufficient medical reasons for the denial. The respondent argues that the denial letter is a valid denial.

36I find that the May 25, 2023 denial letter complies with s. 38(8), because it is a clear and unequivocal denial. The letter was sent within ten business days, it explains that the applicant’s injuries fall within the MIG, a medical reason, and that the respondent has already approved $3,300.00. It directs the application to the definition of a Minor Injury in the Schedule, explains the exemptions to the MIG, and requests that the applicant provide medical records if she disagrees with the MIG determination. Finally, the letter provides information about the applicant’s right to dispute the denial, and the process by which to do so.

37Overall, I find that the May 29, 2023 denial letter is sufficiently clear and understandable for an unsophisticated person to make an informed decision whether to dispute the denial.

38As such s. 38(11) is not triggered, and the treatment plan is not payable.

Is the treatment plan for $4,373.10 for a chronic pain assessment plan submitted February 4, 2024 payable under s. 38(11)?

39I find that the February 4, 2024 treatment plan for a chronic pain assessment is not payable under s. 38(11).

40The applicant submits that the respondent’s February 7, 2024 was procedurally flawed because it was a “blanket denial” based on the MIG and that the applicant had not provided information requested by the respondent in accordance with s.33 of the Schedule. The respondent argues that the denial was based on a lack of medical evidence and noted that the applicant had been placed in s. 33 non-compliance prior to the submission of the treatment plans.

41I find that the February 7, 2024 denial notice is complaint with s. 38(8) because it is a clear and unequivocal denial. It explains that the applicant is subject to the MIG funding limit, and explains that the medical records received to date, which are comprised only of the CNRs of [a doctor], dated March, 2023 to December, 2023 make no mention of the accident. The denial letter requests that the applicant submit further medical records, and refers the applicant to previous correspondence dated December 15, 2023, in which the respondent informed the applicant that she was not compliant with s. 33 requests to provide specific medical records, including records from her treatment providers, hospital, OHIP, and school records. Finally, the denial letter provides the applicant with information about her right to dispute the denial, and the process by which to do so.

42For these reasons, I find that the denial letter is sufficiently clear and detailed for an unsophisticated person to make an informed decision whether to dispute the denial.

43Therefore, I find that the February 7, 2024 denial letter is compliant with s, 38(8), and the treatment plan for $4,373.10 for a chronic pain assessment is not payable under s. 38(11).

Is the treatment plan for $3,322.20 for a concussion assessment submitted February 4, 2024 payable under s.38(11)?

44I find that the February 4, 2024 treatment plan for a concussion assessment is not payable under s. 38(11).

45The applicant submits that the respondent’s February 7, 2024 denial letter does not comply with s. 38(8) because it relied on a prior explanation that the applicant’s accident-related injuries fell within the MIG and it did not address the assessment sought in the treatment plan.

46The respondent argues that the treatment plan was denied based on a lack of medical evidence and noted that the applicant was not in compliance with s.33 at the time the treatment plan was submitted.

47I find that the February 7, 2024 denial letter complies with s. 38(8) because it is a clear and unequivocal denial. It identifies the treatment plan for a concussion assessment, and explains that the applicant’s injuries fall within the MIG, and that the CNRs of [a doctor] do not mention the accident and the respondent does not have medical evidence on file that the applicant has sustained a physical impairment as a result of the accident. It directs the applicant to its December 15, 2023 letter informing her that she is not complaint with s. 33, and identifies medical records that the respondent has requested. The letter further informs the applicant of the exceptions to the MIG and asks her to provide further medical information, should she disagree with the MIG determination. Finally, the denial letter provides the applicant with information about her right to dispute the denial, and the process by which to do so.

48For these reasons, I find that the February 7, 2024 denial letter is compliant with s. 38(8), and as such, the treatment plan for $3,322.20 for a concussion assessment is not payable under s.38(11).

Interest

49Interest 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

50The 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.

51The applicant submits that she is entitled to an award because the respondent denied the treatment plan. However, as she has not directed me to evidence that the respondent’s conduct has reached the level set out above, and I have found that no payments have been unreasonably withheld or delayed, I find that the applicant is not entitled to an award.

ORDER

52I 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. The treatment plans are not payable under s. 38(11).
4. As no payments are owing, no interest is due.
5. The application is dismissed.