Licence Appeal Tribunal File Number: 23-006980/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:
Raghda Alkhiyami
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Linda M Spurrell, Paralegal
For the Respondent:
Simran Walia, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Raghda Alkhiyami, the applicant, was involved in an automobile accident on November 8, 2020, 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 December 5, 2020, to ongoing?
ii. Is the applicant entitled to $1,660.10 for chiropractic treatment, proposed by Liruma Rehab in a treatment plan/OCF-18 (“plan”) dated June 1, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3In the applicant’s written submission, they have withdrawn their MIG claim, and their claim for an award that was set out in the Case Conference Report and Order.
RESULT
4The applicant is not entitled to a non-earner benefit.
5The applicant is not entitled to the chiropractic treatment plan.
6As there are no overdue benefit payments, no interest is owing.
ANALYSIS
Non-Earner Benefit
7Section 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 Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
8The applicant relies on the clinical notes and records (“CNRs”) of Dr. Rassam, the applicant’s family doctor.
9I find that the CNRs of Dr. Rassam do not support the applicant’s claim of a complete inability to carry on a normal life. While Dr. Rassam’s CNRs indicate that the applicant continued to report pain after the accident, they do not include that the applicant reported any impairments to their ability to carry out a normal life due to this pain. Additionally, all the pain reporting is based solely on the applicant’s self report. Dr. Rassam did not condut any tests, or refer the applicant to a pain specialist. Additionally, there is no mention of the subject accident after a December 15, 2020 appointment. Reporting after that date does not reference the subject accident.
10The respondent relies on an orthopaedic surgeon assessment by Dr. Safir, orthopaedic surgeon, completed on March 10, 2021; and an occupational therapy in-home assessment completed by Mr. Kaul, occupational therapist, on March 19, 2021
11I placed significant weight on the s.44 orthopaedic surgeon assessment by Dr. Safir, because it is consistent with the physical findings in the CNRs of Dr. Rassam, Dr. Safir’s CNRs display that the applicant reported ongoing pain, but that she continued to perform all of her previous activities of normal living and does not get help from her husband that she used to receive. Dr. Safir concluded that the applicant does not suffer a complete inability to carry on a normal life as a result of the accident. Based off the doctor’s physical exam, he found no evidence of any significant musculoskeletal impairment as a result of the subject accident.
12I I find that the s.44 occupational therapy in-home assessment does not support the applicant’s claim of an inability to carry on a normal life. The testing of capabilities completed during the assessment by Mr. Kaur did not uncover an inability to carry on a normal life. The applicant reported that she was independent in all of her daily activities of normal living, and there was no reported change between her activities pre and post subject accident.
13I find that the applicant has not proven on a balance of probabilities that she is entitled to NEB due to having an inability to carry on a normal life. The CNRs do not reflect any differences in the applicant’s pre and post activities. The reports submitted by the respondent all report that the applicant reported she was able to continue to complete all of her activities of daily living and personal care.
14The applicant is not entitled to an NEB.
15To receive payment for a treatment and assessment plan under s. 15 and 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.
16I find that the applicant has not proven on a balance of probabilities that the chiropractic treatment plan is reasonable and necessary.
17The goals of the treatment plan are pain reduction, increased strength and a return to activities of daily living.
18The chiropractic treatment plan includes 10 multiple body site therapy, assessment, walker, wristband, and stockings.
19The applicant argues that her family doctor directed her to attend physiotherapy and therefore this treatment is reasonable and necessary. The applicant relies on the CNRs of her family doctor, Dr. Rassam.
20I find that the CNRs of Dr. Rassam do not support the applicant’s claim that the chiropractic treatment is reasonable and necessary. The applicant points to a specific recommendation by Dr. Rassam in January 2022, in which Dr. Rassam notes “advised for physiotherapy”, in relation to the applicant reporting right shoulder pain. This reporting is not associated with the subject accident and the pain reporting is not ascribed to the subject accident. As noted above, there is no reference to the subject accident in the CNRs of Dr. Rassam after a December 15, 2020 visit.
21I find that the chiropract treatment plan is not reasonable and necessary. The applicant has not directed me to any compelling medical evidence that would support that this treatment plan is reasonable and necessary due to injuries sustained as a result of the subject accident.
22I find on a balance of probabilities that the applicant is not entitled to the chiropractic treatment plan.
Interest
23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.
ORDER
24I find that:
i. The applicant is not entitled to NEB.
ii. The applicant is not entitled to the chiropractic treatment plan.
iii. As there are no overdue benefit payments, no interest is owing.
iv. The application is dismissed.
Released: May 27, 2025
Robert Rock
Adjudicator