[HA] v. Co-operators General Insurance Company, 2026 CanLII 39708

Citation: [HA] v. Co-operators General Insurance Company, 2026 ONLAT 24-010481/AABS

Licence Appeal Tribunal File Number: 24-010481/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:

[HA] (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[HA], 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 services, proposed by Oxford Spine Center in a treatment plan/OCF-18 (“treatment plan”) as follows: i. $1,991.00 for a chiropractic services, in a treatment plan submitted September 13, 2022; and ii. $1,250.00 for a chiropractic services, in a treatment plan submitted May 2, 2023?
3. Is the applicant entitled to the assessment proposed by Meditecs, as follows: i. $4,373.10 for a psychological assessment, in a treatment plan submitted January 24, 2024; and ii. $2,867.95 for a attendant care assessment, in a treatment plan submitted January 24, 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. The applicant is not entitled to an award.
4. As no payments are owing, no interest is due.
5. The application is dismissed.

ANALYSIS

Applicability of the MIG

4Section 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.”

5An 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

6I find that the applicant has not established that he has a pre-existing condition that warrants his removal from the MIG.

7The applicant submits that he suffered from asthma, behavioural issues, and developmental conditions prior to the accident, however the applicant has not directed me to evidence of documentation of any of these concerns dated prior to the accident to meet the first part of the test. Further the applicant has not directed me to evidence from a medical practitioner that a pre-existing condition prevents the applicant from recovery from his accident-related injuries to meet the second part of the test.

8For these reasons, 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 impairment

9I find that the applicant has not established that he has physical injuries as a result of the accident that warrant his removal from the MIG.

10The applicant submits that he should be removed from the MIG because he sustained a concussion as a result of the accident. He relies on the September 13, 2022 OCF-18 of Dr. Jamal Alaloul, chiropractor, which identifies concussion and headaches among the list of the applicant’s accident-related injuries.

11The respondent argues that the applicant has not met his onus to prove on a balance of probabilities that he sustained an accident-related physical injury that would remove him from the MIG.

12I find that the evidence does not establish on a balance of probabilities that the applicant sustained a concussion as a result of the accident because OCF-18 is not corroborated by contemporaneous medical records. The applicant first saw [a doctor], on March 2, 2023, more than seven months after the accident, complaining of a skin rash, and there are no mentions of the accident or accident-related injuries in [a doctor’s] CNRs. Further, the applicant has not directed me to any other evidence to corroborate that he was diagnosed with, or treated for, a concussion.

13For these reasons, I find that the applicant has not met his onus to prove that he sustained a physical injury that warrants his removal from the MIG.

Psychological impairment

14I find that the applicant has not established on a balance of probabilities that he suffered a psychological impairment as a result of the accident that warrants his removal from the MIG.

15The applicant submits that he should be removed from the MIG because he is experiencing symptoms of anxiety and sleep disturbances since the accident. He relies on Dr. Alaloul’s September 13, 2022 treatment plan, which identified anxiety disorder and sleeping problems among the applicant’s accident-related injuries. The applicant further relies on the clinical notes and records (“CNRs”) of [a doctor], which included reports from Dr. Asim Salim, pediatrician.

16The respondent submits that the applicant has not met his onus to prove that he suffered a psychological impairment as a result of the accident, as the applicant has not submitted evidence that corroborates the applicant’s submissions.

17I 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. I place little weight on Dr. Alaloul’s September 13, 2022 treatment plan because Dr. Alaloul is a chiropractor, and psychological diagnoses are outside his scope of practice, and the treatment plan is not corroborated by other contemporaneous medical evidence.

18On November 1, 2023, more than one year after the accident, [a doctor] referred the applicant to Dr. Salim for an autism assessment after the applicant’s school expressed concern about autism to the applicant’s parents. [A doctor’s] CNRs reveal that the applicant was reported to have been exhibiting delayed speech, aggressive behaviour, and difficulties with incontinence, and that there had been ongoing concerns for a “few years” at that time.

19Dr. Salim’s reports reveal that at the applicant’s November 17, 2023 autism assessment, the applicant’s mother reported that the applicant had been potty-trained at 4 years old and that his incontinence began after the accident, which occurred when the applicant was 6 years of age. Dr Salim opined that there was an indication that in addition to the applicant’s complex behavioural and developmental issues, the applicant had experienced some trauma related to past accidents and the family’s “settlement experience.”

20However, Dr. Salim’s reports make no mention of the accident after the applicant’s January 19, 2024 appointment, when he opined that the applicant’s incontinence issues have a “temporal connection” to the accident, and that there “may be a psychosomatic connection.” There are no further mentions of the accident or accident-related psychological symptoms in his subsequent five reports, between January 31, 2024 and February 6, 2025. Those reports reveal that Dr. Salim continued to investigate physical causes of applicant’s incontinence, and noted some improvement in his May 1, 2024 report, after the applicant decreased his fluid intake prior to bedtime.

21Dr. Salim’s November 17, 2023 report also indicates that he referred the applicant for a development assessment with a focus on his behavioural issues at the Ron Joyce Centre, and referred the applicant to the Brantford Clinic for behavioural counselling on February 7, 2024. However, Dr. Salim’s reports are silent on the results of any such assessment or counselling.

22Further, Dr. Salim did not suggest potential psychological diagnoses, treatment, or a referral to a pediatric psychologist until February 6 2025, more than 2 ½ years after the accident, and after the applicant’s family lost their house in a fire and relocated to another city. Dr. Salim opined that the applicant’s psychological symptoms were “likely secondary to the trauma experienced during the house fire.”

23For these reasons, I find that the applicant has not proved on a balance of probabilities that the applicant sustained a psychological impairment as a result of the accident.

24Accordingly, the applicant remains subject to the MIG and its $3500.00 spending 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.

Interest

26Interest 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

27The 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. Provide the basis for the award. 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.

28The 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

29I 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 applicant is not entitled to an award.
4. As no payments are owing, no interest is due.
5. The application is dismissed.