Citation: Zaghla v. TD General Insurance Company, 2026 ONLAT 24-013742/AABS

Licence Appeal Tribunal File Number: 24-013742/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:

Naam Zaghla

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Aric Bhargava

APPEARANCES:

For the Applicant:

Phillip Paglino, Counsel

For the Respondent:

Harkamal Hehar, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Naam Zaghla, the applicant, was involved in an automobile accident on December 15, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2On February 21, 2025 a case conference took place for this matter and the Case Conference Report and Order (“CCRO”) dated February 24, 2025, set a 2-day videoconference hearing.

3On March 17, 2025, the applicant filed a Notice of Motion requesting that the Tribunal grant a motion order to convert the videoconference hearing to a written hearing. The respondent consented to the motion.

4The motion order dated March 21, 2025, granted the motion and a notice for a written hearing was issued on April 1, 2025.

5The applicant was removed from the MIG in a letter dated September 7, 2023 due to the accident-related fracture of her left finger.

ISSUES

6The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from May 27, 2024 to December 15, 2024?

ii. Is the applicant entitled to $2,343.39 for physiotherapy services, proposed by Gonzalez Seksek Chiropractic Professional Corporation in a treatment plan/OCF-18 (“plan”) submitted April 4, 2024?

iii. Is the applicant entitled to $3,621.29 for physiotherapy services, proposed by Gonzalez Seksek Chiropractic Professional Corporation in a plan submitted April 4, 2024?

iv. Is the applicant entitled to $2,015.75 for physiotherapy services, proposed by Gonzalez Seksek Chiropractic Professional Corporation in a plan submitted July 11, 2024?

v. Is the applicant entitled to $1,871.25 for physiotherapy services, proposed by Gonzalez Seksek Chiropractic Professional Corporation in a plan submitted September 26, 2024?

vi. Is the applicant entitled to $1,857.42 for physiotherapy services, proposed by Gonzalez Seksek Chiropractic Professional Corporation in a plan submitted October 15, 2024?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

7The applicant is not entitled to a NEB of $185.00 per week from May 27, 2024 to December 15, 2024.

8The applicant is not entitled to the disputed physiotherapy treatment plans.

9The applicant is not entitled to interest.

PROCEDURAL ISSUES

Exclusion of surveillance report

10The applicant submits in her reply submissions that the respondent failed to produce the Investigation Report dated November 27, 2024 in accordance with the CCRO and the report should be excluded from the hearing. The applicant submits she received the respondent’s written submissions including the Investigation Report on June 12, 2025, however, the surveillance footage for the Investigation Report was not produced by the respondent.

11The respondent states, by email dated June 12, 2025, that the Investigation Report was sent to the applicant, however, I was not directed to evidence in support of this. The respondent’s submission does not state what prejudice is caused by not including the Investigation Report in the hearing.

12I agree with the applicant that without the video footage the Investigation Report is less reliable. Given the Investigation Report and the video footage were not served within the timelines set out in the CCRO, the respondent is in breach of Rule 9.4 of the License Appeal Tribunal Rules, 2023 (“Rules”), and under Rule 9.3, a party cannot rely on documents served late without Tribunal permission.

13Accordingly, I have excluded the Investigation Report from my analysis.

ANALYSIS

Is the applicant entitled to a NEB of $185.00 per week from May 27, 2024 to December 15, 2024?

14I find that the applicant is not entitled to an NEB in the amount of $185.00 per week for the period of May 27, 2024 to December 15, 2024.

15Section 12(1) of the Schedule provides that an insurer shall pay a 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 “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 (“Heath”), which generally focusses on a comparison of an applicant’s pre- and post-accident activities.

16The applicant submits that she was not working at the time of the accident. The applicant relies on the clinical notes and records (“CNRs”) of The London InterCommunity Health Science Centre for the period of December 15, 2019 to February 26, 2025 and the OCF-3/Disability Certificate dated April 25, 2023, prepared by Mr. Atiq Farooqui, physiotherapist.

17The applicant also relies on parts of the section 44 assessments conducted by Dr. Ahmed Jwely, psychiatrist, dated May 9, 2024, and Mr. Danny Horban, occupational therapist, dated February 28, 2024, that state that before the accident, the applicant was independently performing physical, social and recreational activities of daily living, self-care tasks, household tasks and home maintenance, that included taking her children to parks and gardening, social engagements including travel outside the city and having picnics.

18Based on the evidence, the applicant’s pre-accident activities that she ordinarily engaged in were her personal care, childcare, household activities such as cooking, cleaning, grocery shopping, bed and linen care, grass cutting, snow shoveling, physical, social and recreational activities of daily living, and home maintenance tasks.

19The applicant summarized her accident-related impairments as serious physical and psychological injuries, including a fracture to her left index finger and middle finger that required a dorsal splint for three weeks, and bruising to the abdomen and left leg.

20The OCF-3 dated April 25, 2023 prepared by Mr. Farooqui notes the applicant’s injuries include fracture of finger, cervicalgia near head, injury of muscle and tendon, pain in limb, sprain and strain of lumbar spine, superficial injury of wrist and hand, low back pain, pain in thoracic spine, upper limb, injury of shoulder and upper arm. Mr. Farooqui indicates the applicant suffers a complete inability to carry on a normal life, a substantial inability to perform housekeeping and home maintenance services, and an anticipated duration of nine to twelve weeks.

21The applicant has directed me to the CNRs from her primary caregiver that notes her self-reported complaints of pain, however, it does not indicate that she is functionally impaired from engaging in her pre-accident tasks as a result of her accident-related injuries. Additionally, the applicant has not directed me to any medical opinion from a treating physician confirming a complete inability to carry on a normal life in support of her claim.

22The applicant was paid a NEB beginning on June 18, 2023 in the amount of $185.00 per week. On May 14, 2024 the respondent advised the applicant that she was no longer entitled to a NEB of $185.00 per week based on the section 44 insurer’s examination reports because she no longer met the criteria for NEB entitlement. The respondent submits the applicant fails to meet the test under section 12 of the Schedule and that she has not met her onus in accordance with the principles set out in Heath.

23The respondent relies on the section 44 assessments conducted by Dr. Jwely, Mr. Horban, and Dr. Oleg Safir, orthopaedic surgeon, dated February 28, 2024. The section 44 reports note the applicant’s independence before the accident with personal care and childcare, and also her household activities, such as cooking, cleaning, grocery shopping, bed and linen care, grass cutting, snow shoveling.

24The section 44 occupational therapy in-home report prepared by Mr. Horban notes the applicant complained that she is “unable to do anything” and she required the assistance of her husband and adult children to complete all of her activities of daily living, including home maintenance, housekeeping, and childcare. Mr. Horban notes the applicant did not participate in the evaluation of basic functional tolerances or accompany the therapist for an environmental overview. Mr. Horban concluded the applicant “does not currently suffer a complete inability to carry on a normal life.”

25The section 44 orthopaedic surgery assessment dated January 31, 2024, prepared by Dr. Oleg Safir, orthopaedic surgeon, and the section 44 psychology assessment dated May 9, 2024, prepared by Dr. Ahmed Jwely, psychiatrist, also notes that the applicant does not suffer a complete inability to carry on a normal life, despite her moderate psychological symptoms and restrictions in the range of motion of her left hand.

26The applicant argues Mr. Horban’s report, and the section 44 reports should be given little weight because the reports are not independent or impartial. However, the applicant also relies on excerpts of Mr. Horban’s section 44 report, and the applicant has not directed me to a comprehensive account of her pre- and post-accident activity level outside of referring to the section 44 reports. The applicant has not explained why she opted not to participate in the assessment exercises during the occupational therapy in-home assessment.

27I place more weight on the section 44 reports prepared by Dr. Jwely and Dr. Safir because the section 44 reports provide a comprehensive view of the applicant’s ability to function in consideration of her physical, functional, and psychological impairments. The applicant met with each doctor/assessor for an in-person assessment and Dr. Safir’s assessment included a physical examination, general observations of the applicant’s movements, cervical spine and thoracolumbar spine examination, bilateral shoulder, elbow, forearm, hand and wrist, knee, foot and ankle examination before concluding the applicant “does not suffer a complete inability to carry on a normal life.”

28I find the applicant has not demonstrated that her accident-related injuries preclude her from completing substantially all her pre-accident activities because the medical evidence does not support her claim that the accident-related impairments have resulted in continuous inability to engage in substantially all of her pre-accident activities during the time in question.

29The test in Heath is whether she can meaningfully perform most of her pre-accident activities in a way that reflects her normal life. I find that although the medical evidence notes she experiences some pain, she is able to resume a substantial amount of her daily activities and functioning.

30Accordingly, I find that the applicant has not demonstrated that she suffers a complete inability to carry on a normal life. Therefore, on a balance of probabilities the applicant is not entitled to the disputed NEB of $185.00 from May 27, 2024 to December 15, 2024.

31I find the applicant has not met the burden of proof to demonstrate that the treatment plans are reasonable and necessary.

32To receive payment for an OCF-18 under sections 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 the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

33There are five physiotherapy treatment plans in dispute. Each plan seeks to achieve pain reduction, increase in strength, increased range of motion, return to activities of normal living, and return to pre-accident work activities. Progress will be evaluated through subjective and objective findings.

i. The first plan, dated April 4, 2024, valued $2,343.39 recommends eighteen therapy sessions targeting multiple body sites, and one session for assessment, and documentation support activity.

ii. The second plan, dated April 4, 2024, valued $3,621.29 recommends sixteen therapy sessions and sixteen hyperthermy sessions targeting multiple body sites, another sixteen therapy sessions targeting multiple body sites with a different provider, four education sessions, one TheraBand, two assessments, and documentation support activity.

iii. The third plan, dated July 11, 2024, valued $2,015.75 recommends sixteen therapy sessions targeting multiple body sites, three education sessions, one assessment, and documentation support activity.

iv. The fourth plan, dated September 26, 2024, valued $1,871.25 recommends fourteen therapy sessions targeting multiple body sites, three education sessions, one assessment, one analgesic gel, one TheraBand, and documentation support activity.

v. The fifth plan, dated October 15, 2024, valued $1,857.42 recommends eighteen therapy sessions and eighteen hyperthermy sessions targeting multiple body sites, four education sessions, one assessment, and documentation support activity.

34The applicant submits the five treatment plans for physiotherapy are reasonable and necessary to treat her chronic pain and somatic symptom disorder. The applicant argues pain relief is a legitimate medical rehabilitative goal and relies on the CNRs of Dr. Gong of The London InterCommunity Health Science Centre, and on portions of Dr. Jwely’s and Dr. Safir’s section 44 reports.

35The applicant does not address how the overall goals of the treatment are being met or why the prior treatment was insufficient, and she does not address Dr. Safir’s section 44 notes in which the applicant stated there is no improvement as a result of the previous physiotherapy treatments.

36The respondent submits the applicant has failed to establish that the treatment plans identify reasonable treatment goals that were being met to a reasonable degree and that the costs are reasonable. The respondent relies on the section 44 report prepared by Dr. Safir that notes the applicant “has participated in sufficient courses of formal facility based physical rehabilitation” and she should be discharged to self-management of her residual impairment symptoms.

37Based on the evidence, the applicant has not demonstrated that the proposed physiotherapy plans are reasonable and necessary.

38Accordingly, I find on a balance of probabilities that the applicant is not entitled to the physiotherapy treatment plans.

Interest

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owed, no interest is payable.

ORDER

40For the above reasons, it is ordered that:

i. The applicant is not entitled to a NEB of $185.00 per week from May 27, 2024 to December 15, 2024

ii. The applicant is not entitled to the disputed physiotherapy treatment plans.

iii. As there are no overdue benefits, the applicant is not entitled to interest.

41The application is dismissed.