Licence Appeal Tribunal File Number: 24-010327/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:
Waleed Khan
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Caley Howard
APPEARANCES:
For the Applicant: Leanne Goldstein, Counsel
For the Respondent: Diana Oliveira, Counsel
Court Reporter: Prashanth Thambipillai
Heard by Videoconference: July 15 and 16, 2025
OVERVIEW
1Waleed Khan, the applicant, was involved in an automobile accident on June 26, 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, Allstate Insurance Company of Canada, 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. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from July 23, 2023 to date and ongoing?
ii. Is the applicant entitled to $2,450.00 for chiropractic services, proposed by Dr. David MacAskill Chiropractic PC in a treatment plan/OCF-18 (“treatment plan”) submitted April 29, 2024?
iii. Is the applicant entitled to $1,796.02 for an occupational therapy assessment, proposed by Functionability Rehab Services in a treatment plan submitted May 6, 2024?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is entitled to an NEB of $185 per week from July 23, 2023 to June 23, 2025;
ii. The applicant is entitled to the treatment plan for chiropractic services;
iii. The applicant is entitled to the treatment plan for an occupational therapy assessment;
iv. The respondent is not liable to pay an award under s. 10 of Reg. 664; and
v. The applicant is entitled to interest on any overdue payment of benefits.
PROCEDURAL ISSUES
Motion to convert to a written hearing
4The applicant filed a motion with the Tribunal on July 14, 2025, requesting that the hearing be converted from a two-day videoconference hearing to a written hearing to be scheduled no earlier than November 28, 2025. The applicant proposed to provide his testimony by way of affidavit and to make himself available to the respondent for cross-examination on the affidavit. The applicant proposed that all of the medical evidence would be provided by way of reports and other documents.
5The applicant submitted that the conversion was necessary because he was experiencing a flare-up of pain and would require frequent and prolonged breaks while testifying, which would not permit all of the planned witnesses to be heard within the two days scheduled for the hearing. The applicant submitted that, given his health concerns, a written hearing was the most efficient and proportional way to resolve the application.
6The respondent consented to the motion.
7I found that, given the parties agreed to submit their medical evidence by way of written reports, the most efficient, proportional and timely way to decide the merits of the application was to proceed with the videoconference hearing while limiting the witness testimony to just the applicant. I found that this would enable us to accommodate the applicant’s need for frequent and lengthy breaks without unduly delaying the hearing.
Motion to exclude the reports of Nazia Hoque, social worker
8The respondent filed a motion with the Tribunal on May 23, 2025 to exclude two reports from Nazia Hoque, social worker, dated March 12, 2025 and May 14, 2025, on the basis that they were not produced in accordance with the deadlines set out in the Case Conference Report and Order dated January 15, 2025. The deadline for production of documents the parties intended to rely on at the hearing was March 31, 2025. The respondent submits that it did not receive the reports until May 15, 2025.
9Rule 9.3 of the Rules provides that if a party does not comply with an order respecting the production of documents, the party may not rely on that document as evidence without the permission of the Tribunal.
10The respondent submits that it would be prejudiced if the applicant were permitted to rely on the reports, because their late production prevented it from sending them to its own experts for comment.
11The applicant submits that he did not receive the March 12, 2025 report before the March 31, 2025 production deadline, but was unable to explain why. The applicant asks that he be permitted to rely on the reports of Ms. Hoque because they are relevant to whether he is entitled to an NEB and he would be prejudiced if the reports, which provide an updated report of his functional limitations, are not admitted.
12I ordered that the applicant may rely on the reports of Ms. Hoque, but that I would give them less weight to account for the late production. I found that this order would balance the potential prejudice claimed by each party in the circumstances, given that the applicant provided no reason for his non-compliance and the content of Ms. Hoque’s reports did not lie within the knowledge of the respondent.
ANALYSIS
The applicant is entitled to an NEB
13I find that the applicant is entitled to an NEB of $185.00 per week from July 23, 2023 to June 23, 2025, which is 104 weeks from the date of the accident.
14Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Inurance Company, 2009 ONCA 391 (“Heath”), which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities. The applicant bears the burden of proving that he meets this test.
15The applicant acknowledges that he contracted the Polio virus as a child and suffered from certain residual effects to his left leg as a result. In 2019, before the accident, he was diagnosed with Post Polio Syndrome (“PPS”), which led him to be unable to continue his employment as a truck driver. The applicant submits that despite his symptoms of PPS, which he testified affected mainly his lower limbs and pelvis, he had managed to “find a balance” in his life and he was happy prior to the accident. The applicant submits that since the accident he has suffered from pain in his mid-back, neck and the side of his head. The applicant submits that due to this accident-related pain, he suffers a complete inability to carry on a normal life. The applicant relies on his own testimony and on the chronic pain assessment report of Dr. Steve Blitzer, physician, dated November 12, 2024, the occupational therapy in-home functional assessment report of Mubeenaa Rahman, occupational therapist, dated September 12, 2024, as well as the progress report of Ms. Rahman dated January 14, 2025. The applicant also relies on various clinical notes and records of his family doctor, Dr. Ahmad Durrani, and the reports of his social worker, Ms. Hoque.
16The respondent submits that the applicant has not met all of the requirements set out in Heath, particularly due to his pre-existing health condition, and has, therefore, not proven that he meets the test for an NEB. The respondent relies on the occupational therapy assessment report of Elana Korman, occupational therapist, dated August 2, 2024, and the orthopaedic assessment report of Dr. Osama Gharsaa, dated June 7, 2024. The respondent points to the discrepancies between two Activities of Daily Living (“ADL”) checklists filled out by the applicant at different times. The respondent further relies on the applicant’s pre- and post-accident prescription summaries.
The applicant’s life before the accident
17The applicant testified that he lived with his wife and their four children at the time of the accident. He continues to live with his wife and three youngest children. His oldest daughter has since married and moved out.
18The applicant acknowledges that he had existing health concerns at the time of the accident. The applicant’s PPS symptoms had caused him to stop working and he has been receiving CPP-D benefits since approximately 2019. The applicant testified that his symptoms prior to the accident primarily consisted of weakness, tremors and pain in his legs and lower back/pelvis, although he also reported having occasional pain in his neck and shoulder. The symptoms described by the applicant are consistent with the pre-accident CNRs of Dr. Durrani.
19The applicant testified that he occasionally took pain medication for his PPS. He testified that he took Naproxen, Cyclobenzaprine and Tylenol occasionally, as needed for the pain.
20The applicant testified that he used no assistive devices prior to the accident, although he had always worn orthotics due to his childhood Polio. The applicant was not attending physiotherapy or psychotherapy prior to the accident. He was not taking any medications for mental health issues such as depression or anxiety.
21The applicant reported to Ms. Rahman that before the accident his sleep was somewhat disrupted due to pain and that he spent an additional four or five hours during the day sleeping as a result of that disruption.
22The applicant testified that between the time he stopped working as a truck driver and the time of the accident, his PPS symptoms improved significantly and he was able to participate in a number of activities that gave meaning to his life. Specifically, the applicant testified that before the accident he was able to do the following:
personal care such as bathing and shaving, daily;
picking his children up from school every day and dropping them off at school occasionally;
taking his youngest son to activities like soccer, weekly;
playing board games with his youngest son;
attending mosque four to five times per week, for approximately 15 minutes, to pray;
participating in prayer at home five times per day, in accordance with his faith, which involved bending and prostrating himself;
lighter grocery shopping independently;
shopping with his wife or son when shopping for heavier items;
exercise, including daily walks and playing badminton approximately five times per week with friends in a nearby school gym;
helping with daily household tasks to the extent he was able, which included helping with food preparation at mealtimes, doing dishes and light cleaning of the kitchen, vacuuming and assisting with laundry;
cutting the grass with a lawn tractor and doing some light planting in the garden, for approximately two or three hours per week in the summer months;
participating in lighter home renovation tasks, such as painting doors and filling holes in the walls;
hosting friends at his home for dinner or visiting friends on a weekly basis;
attending a favourite restaurant in Ajax approximately three times per month; and
driving independently for 30 to 45 minutes.
23The applicant testified that daily exercise, sleeping well and eating well were important to help manage his PPS symptoms. He testified that it was important to his relationship with his family members, particularly his wife, that he was able to help with household tasks, even if his wife was primarily responsible for these tasks. He testified that it was important to him to engage in activities and games with his children, but particularly his youngest son, due to his age.
The applicant’s accident-related injuries
24The applicant testified that he was riding in a van with a friend when they were rear-ended while stopped. The applicant testified that he immediately experienced severe pain in his mid-back, neck the left side of his face and head and his left shoulder. He called Dr. Durrani within a day of the accident, who suggested he take his pain medication and come in the next day.
25The applicant testified that he saw Dr. Durrani the next day, and he was referred to the emergency department for CT scans, which revealed nothing.
26The applicant followed up with Dr. Durrani, who recommended physiotherapy, massage therapy and chiropractic treatment.
27The accident-related injuries described by the applicant are consistent with those the applicant reported to Dr. Blitzer. The applicant reported to Dr. Blitzer that he experienced a slight improvement in his pain symptoms immediately after the accident, with his pain improving slightly within the first couple of weeks. Since that time, the applicant reported there was no further improvement in his pain. Dr. Blitzer diagnosed the applicant with chronic pain.
The applicant’s life after the accident
28The applicant submits that he sustained new injuries in the accident, particularly the mid-back pain, and that the accident made his symptoms of PPS worse. In addition, the applicant testified that he finds sleep more difficult than before the accident. He also testified that he suffers from increased fatigue, irritation, depression and anxiety since the accident.
29The applicant testified that, since the accident, he is unable to do much other than lie in bed. While the applicant is still able to perform his own self-care activities, such as bathing, his pain prevents him from helping with household chores and lawn care.
30He further testified that his neck pain and anxiety limit his driving. As a result, he no longer drives to pick up the children from school on a daily basis, nor does he take his youngest son to weekly after-school activities like soccer. He no longer does any independent shopping. He testified that his wife does most of the shopping now, but he sometimes goes along because he can lean on the cart.
31The applicant testified that his pain prevents him from playing games with his son. The applicant no longer goes for daily walks. While he has tried to play badminton, he described the experience as very different than before the accident, when he could play for 20 minutes at a time. After the accident, he has played for a short time before laying down on the bench to rest. Sometimes he just sits on the bench and watches without playing at all. He no longer plays badminton several times per week as he did before the accident.
32The applicant testified that he no longer hosts friends at his home because he is no longer able to help out with food preparation and cleaning up and he doesn’t want to burden his wife with entertaining friends. Similarly, he no longer goes to dinner at friends’ houses because he is unable to reciprocate by inviting friends to his home.
33The applicant testified that he only attends mosque once per week, which he described as a mandatory minimum. He has shortened his prayer time at home, and he has modified his positioning during prayer. He testified that his inability to spend more time in prayer has made him feel frustrated and guilty.
34Throughout his testimony, the applicant described his pain as being the limiting factor that prevents him from participating in the activities that he engaged in prior to the accident.
35I find that Dr. Blitzer’s report and Ms. Rahman’s reports confirm the applicant’s description of his pre- and post-accident activities. While none of the reports go into the detail provided by the applicant with respect to time spent performing each activity and the importance of activities to his life, they do highlight his inability to help his wife with household tasks, spend time with his children, participate in his pre-accident exercises of walking and badminton, shop independently and attend his mosque.
36I further find that the reports of Ms. Hoque confirm the applicant’s description of his pre- and post-accident activities. Specifically, Ms. Hoque’s reports confirm that the applicant supported his wife by helping with light housework, light cooking and light shopping prior to the accident. They also confirm that he attended social gatherings, played badminton frequently and entertained friends at his home before the accident. Ms. Hoque’s reports confirm that the applicant is more socially isolated since the accident, is unable to contribute to any household chores, and he is no longer able to play board games and watch movies with his children due to his pain levels. As set out above, I give less weight to Ms. Hoque’s reports due to their late production.
37There are some discrepancies between the ADL checklist completed by the applicant on July 18, 2023, at the request of CBI Health, his treating physiotherapy clinic, and the ADL checklist he completed on April 16, 2024 at the request of the respondent. However, I give little weight to these discrepancies because the forms are not the same and the applicant filled out “not applicable” or “N/A” for the majority of the CBI Health questionnaire. The CBI Health questionnaire asked for which activities the applicant was independently responsible and which activities were shared, while the respondent’s questionnaire asked which activities the applicant can and cannot do. I find that the differences in the forms likely accounted for the discrepancies.
38In addition, I find that the April 16, 2024 questionnaire largely conforms to the applicant’s testimony respecting his pre and post-accident activities, with the exception of his response to the lawn care question. The applicant indicated on the form that he “cannot do” lawn care either before or after the accident. This is inconsistent with his testimony, in which he indicated that he would use the lawn tractor to cut the grass prior to the accident. However, I find this inconsistency to be minor and give it little weight.
39Dr. Gharsaa opined that the applicant did not qualify for an NEB, finding that he exhibited no functional limitations, from an orthopedic perspective. In terms of pre- and post-accident activities, Dr. Gharsaa compared the fact that the applicant still drives, although he is limited to shorter distances; the fact that he is still capable of performing his own self-care, although he is slower than before; and the fact that he reported playing badminton at a reduced frequency, although he still reported playing two or three times per week. I give less weight to Dr. Gharsaa’s opinion because he does not take into consideration the functional limitations caused by the applicant’s pain. In Heath, the Court of Appeal indicated that where pain is a primary factor, the Tribunal must consider not just whether the applicant is physically capable of doing an activity, but whether the pain experienced, either during or after the activity, effectively prevents the applicant’s participation in the activity.
40In addition, Dr. Gharsaa’s comparison of the applicant’s pre- and post-accident activities was limited and did not touch on many activities that the applicant described as important such as his religious practice, the time he spent with his children, and helping his family with household tasks and shopping. As set out in Heath, pre-accident activities that the applicant identifies as important are given prominence in the analysis.
41Similarly, I give less weight to the occupational therapy assessment report of Ms. Korman as she did not take into consideration the functional limitations caused by the applicant’s pain. In addition, Ms. Korman’s report did not include a comparison of the applicant’s pre- and post-accident activities.
42I find that the applicant has established that his post-accident impairments, which consist of both an exacerbation of his existing PPS symptoms, mid-back pain and chronic pain, continuously prevent him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. I find that even the activities that he is still physically able to perform, such as attending badminton, are diminished in quality as his pain prevents him from engaging to the extent he was able to before the accident. I also consider the fact that the applicant is no longer able to participate in certain pre-accident activities that meant the most to him, namely, spending time with his children, and helping his wife with household tasks and shopping. While the applicant has continued to drive and to attend mosque once per week and to pray at home, I find that these activities have been significantly curtailed, both in quantity and quality, due to his pain.
43As a result, I find that the applicant has proven, on a balance of probabilities, that he has suffered a complete inability to carry on a normal life as a result of the accident, which commenced immediately following the accident. Therefore, the applicant is entitled to an NEB of $185.00 per week from July 23, 2023 to June 23, 2025.
The applicant is entitled to the treatment plan for chiropractic treatment
44I find that the applicant is entitled to the treatment plan for chiropractic treatment.
45To receive payment for a treatment and assessment plan under s. 15 and s. 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
46The treatment plan for chiropractic services was submitted on April 29, 2024 by Dr. Dave MacAskill, chiropractor, and sought funding in the amount of $2,450.00. The goals of the treatment plan are pain reduction and a return to activities of normal living.
47The applicant submits that he is entitled to the treatment plan, because he underwent the treatment and found it beneficial. In support of his submission that the treatment plan is reasonable and necessary, the applicant relies on the CNRs of Dr. Durrani, and the January 14, 2025 report of Dr. Blitzer.
48The respondent submits that the treatment plan is not reasonable and necessary and it relies on the orthopaedic IE report of Dr. Gharsaa dated June 7, 2024.
49The CNRs of Dr. Durrani show that Dr. Durrani recommended ongoing physiotherapy, chiropractic and massage therapy for the applicant’s accident-related pain on April 16, 2024. I give significant weight to this recommendation because it comes from the applicant’s family physician, who has treated the applicant for many years, both before and after the accident.
50Dr. Blitzer opined that the applicant sustained numerous soft tissue injuries in the accident, which both significantly exacerbated his existing PPS and caused new chronic pain symptoms, most notably in his mid-back. Dr. Blitzer recommended ongoing chiropractic treatment and opined that the applicant would continue to benefit from both passive and active therapies.
51Dr. Gharsaa opined that facility-based treatment, such as the recommended chiropractic treatment, was not medically required, because his examination did not reveal pathology or impairment other than a self-limiting, pain-focused decrease in the applicant’s range of motion in his neck.
52I prefer the opinion of Dr. Blitzer to that of Dr. Gharsaa respecting the reasonableness and necessity of the chiropractic treatment, because Dr. Blitzer takes into account the extent to which the applicant’s pain affects his functioning. Conversely, while Dr. Gharsaa recognizes that the applicant continues to report pain, he does not discuss whether the proposed treatment may help reduce or relieve the applicant’s accident-related pain.
53I find that pain reduction is a reasonable goal of the proposed treatment, even if the treatment is unlikely to fully return the applicant to his pre-accident functioning, as Dr. Blitzer cautioned in his report.
54Therefore, based on the recommendation of Dr. Durrani and the opinion of Dr. Blitzer, I find that the applicant has proven, on a balance of probabilities, that the treatment plan for chiropractic treatment is reasonable and necessary.
The applicant is entitled to the treatment plan for an occupational therapy assessment
55I find that the applicant is entitled to the treatment plan for an occupational therapy assessment.
56To receive payment for an assessment proposed in a plan, the applicant has the onus to prove there are reasonable grounds to believe that a condition exists that would warrant further investigation.
57The treatment plan was submitted on May 6, 2024 by Functionability Rehab Services, and it sought funding of $1,796.02 for an occupational therapy in-home assessment. The goals of the treatment plan were to evaluate the applicant’s physical, cognitive and psycho-social needs, and to determine a plan for treatment as necessary.
58The applicant submits that the treatment plan is reasonable and necessary because he incurred the occupational therapy in-home assessment and the respondent funded many of the treatments and equipment that were recommended in the report of Ms. Rahman, dated September 12, 2024. In support of his position, he relies on Ms. Rahman’s report as well as her progress report.
59The respondent submits that the treatment plan is not reasonable and necessary, and it relies on the August 2, 2024 IE occupational therapy assessment report of Ms. Korman, occupational therapist.
60The applicant testified that he underwent the occupational therapy assessment with Ms. Rahman in August 2024 and that Ms. Rahman made several recommendations as a result, such as changing his mattress, recommending a massage chair and teaching him about the use of breathing techniques. Ms. Rahman also recommended further massage and physiotherapy, a social worker and a personal support worker. The applicant testified that he ended up seeing Ms. Hoque, the social worker, as a result this recommendation, and has a personal support worker who comes to help with the housework.
61Ms. Rahman opines that the cumulative effects of pain, in particular, have limited the applicant’s ability to function at his pre-accident levels. I prefer the opinion of Ms. Rahman to that of Ms. Korman because Ms. Rahman considered the effect of the applicant’s pain on his functional abilities. Conversely, Ms. Korman’s report focuses on whether the applicant was physically capable of performing specific movements and activities, without discussing whether his pain levels would prevent him from doing them. Therefore, I give more weight to Ms. Rahman’s report than that of Ms. Korman.
62I am persuaded by Ms. Rahman’s report that the applicant had a condition that warranted further investigation in the form of an occupational therapy assessment.
63As a result, I find that the applicant has proven, on a balance of probabilities, that the treatment plan for an occupational therapy assessment is reasonable and necessary. The applicant is entitled to the treatment plan.
Interest
64Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
65The applicant is entitled to interest on any overdue payments in accordance with s. 51.
Award
66I find that the respondent is not liable to pay an award.
67The 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 this criteria.
68The applicant submits that the respondent behaved unreasonably by keeping him in the MIG for approximately one year after the accident. The applicant further submits that, once he was removed from the MIG, it was unreasonable for the respondent to not immediately approve treatment plans that were denied because they fell outside of the MIG limits. The applicant relies on his award particulars in support of this claim.
69The respondent submits that it relied on the opinions of its IE assessors in support of its denials of benefits, and that its behaviour in adjusting the file must rise above a mere incorrect decision to amount to “unreasonable.”
70I find that the respondent removed the applicant from the MIG shortly after receipt of the June 10, 2024 report of Dr. Gharsaa recommending his removal. While it may have taken the respondent longer than the applicant preferred to determine that he should be removed from the MIG, the applicant has not referred me to any behaviour that I would consider excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
71I find that, upon removing the applicant from the MIG, the respondent was entitled to make a determination as to whether any treatment plans, which had previously been denied as being outside of the MIG, were reasonable and necessary. I find that its decision to determine that they were not reasonable and necessary in these circumstances did not amount to unreasonable behaviour.
72I further find that the respondent’s denials were based on the opinions of its IE assessors. The respondent is correct that unreasonable behaviour requires more than an incorrect decision made by an adjuster. I find that it was not unreasonable for the respondent to rely on the opinions of its IE assessors in denying the claims.
73Therefore, I find that the respondent is not liable to pay an award under s. 10 of Reg. 664
ORDER
74I find:
i. The applicant is entitled to an NEB of $185 per week from July 23, 2023 to June 23, 2025;
ii. The applicant is entitled to the treatment plan for chiropractic services;
iii. The applicant is entitled to the treatment plan for an occupational therapy assessment;
iv. The respondent is not liable to pay an award under s. 10 of Reg. 664; and
v. The applicant is entitled to interest on any overdue payment of benefits.
Released: October 3, 2025
Caley Howard
Adjudicator