Licence Appeal Tribunal File Number: 25-000969/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:
Masoud Naddafi
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Masoud Naddafi, Self-Represented
For the Respondent:
Patrick Baker, Counsel
Court Reporter:
Siriana Taylor
HEARD by Videoconference:
November 10, 12-15, 2025
OVERVIEW
1Masoud Naddafi, the applicant, was involved in an automobile accident on September 10, 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, The Personal 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:
i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from June 10, 2024, to date and ongoing?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from September 13, 2023, to date and ongoing?
iii. Is the applicant entitled to $5,653.04 for chiropractic services, proposed by Elysian Wellness, in a treatment plan/OCF-18 (“plan”) dated December 18, 2024?
iv. Is the applicant entitled to attendant care benefits in the amount of $800.00 per month from September 13, 2023, to ongoing?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from June 10, 2024, to date and ongoing.
4The applicant is not entitled to a non-earner benefit of $185.00 per week from September 13, 2023, to date and ongoing.
5The applicant is entitled to $1,829.04 out of $5,653.04 proposed for physiotherapy treatment and massage in a plan dated December 18, 2024, plus interest under s. 51. The applicant is not entitled to the remaining balance of the plan.
6The applicant has not applied for attendant care benefits and therefore assessment of this issue is premature.
7The respondent is not liable to pay an award under s. 10 of Reg. 664.
ANALYSIS
Preliminary Considerations
Causation and s. 44 assessments
8This application is regarding an accident which occurred on September 10, 2023. The applicant was in a subsequent accident in February 2025. There was some focus on this during the hearing and the parties disagree on whether the subject September 2023 accident or the subsequent February 2025 accident was the cause of the applicant’s impairments. The applicant also raised the issue of whether he suffered a concussion as a result of the subject accident. Further, the applicant raised concerns that the respondent’s s. 44 insurer examination (“IE”) assessors did not provide objective and fair evidence. While I note the contrasting positions and evidence relating to these aspects of the parties’ positions, nothing in this hearing turns on these points because the applicant ultimately did not meet his evidentiary burden relating to the legal tests for the issues in dispute. As it relates to my finding that the applicant is entitled to some of the goods and services in the proposed plan, the related evidence including the IEs reviewed were completed prior to the subsequent accident. For this reason, it is not a concern.
Witness Testimony
9The applicant chose not to testify at the hearing and focused on advocating for his positions as a self-represented applicant. All the witnesses called by the applicant are treatment providers. The respondent indicated that here are no requests received for the respondent to fund any s. 25 assessments, to date. The following witnesses testified at the hearing, called by the applicant:
i. Dr. Qadeer Ahmad, Psychologist
ii. Dr. Jacob Boomgaardt, Physiatrist
iii. Dr. Alex Tieu, Chiropractor
iv. Dr. Jennifer Chew, Family Doctor
10The following s. 44 assessors testified at the hearing, called by the respondent:
i. Dr. Ajmal Razmy, Psychiatrist
ii. Wesam Al Ghazawi, Occupational Therapist
iii. Dr. Jamsheed Desai, Neurologist
iv. Dr. Abdul-Wahab Khan, Physiatrist
The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from June 10, 2024, to date and ongoing
11I find that the applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from June 10, 2024, to date and ongoing.
Pre-104 Week IRB
12To receive payment for an income replacement benefit (“IRB”) under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
13The parties agree that the applicant has been on long term disability for approximately 20 years and has not been actively working during this time. The parties are also in agreement that that the applicant’s income was not affected by the accident.
14The applicant argues he should be considered to be employed despite being on long term disability and not actively working for an extended period of time. I was not referred to evidence to establish the applicant is employed. The applicant further argues that he does not receive 100 per cent of his total pre-long term disability employment income through long term disability benefits and only receives 60 per cent. He does not argue that this decrease in income is as a result of the subject accident. However, he argues that his insurer should provide him with an income replacement benefit as a result of this economic hardship due to impairments sustained as a result of the accident. It is well established that IRBs are only available in instances where an insured cannot work due to accident-related impairments, and this nexus was not established by the applicant.
15The respondent argues that the applicant does not meet the test for eligibility of an IRB. The respondent argues that the applicant was not employed for the purposes of eligibility of an IRB because he was not working at the time of the accident or for any relevant period prior to the accident.
16Since the applicant did not identify the essential tasks of his employment, which tasks he is unable to perform and to what degree he is unable to perform them as a result of the accident, he has not addressed this evidentiary burden. Further, since the applicant has been on long term disability for approximately 20 years and has not been actively working during this time, I find that the applicant is not eligible for an IRB as he has not established that he was “employed at the time of the accident”, as required by s. 5(1) of the Schedule.
17I find that the Schedule is clear that an insured must establish that he suffered a substantial inability within the first 104-week period to qualify for post-104 weeks IRBs. Section 6(2)(b) simply sets out the more stringent test for an insured's ongoing entitlement to the benefit: Paesano v. Coseco Insurance Co., 2025 ONSC 3245. Since I have found that the applicant is not entitled to a pre-104-week IRB, it is unnecessary to assess whether the applicant meets the more stringent test for a post-104-week IRB.
18For the reasons above, on a balance of probabilities, I find that the applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from June 10, 2024, to date and ongoing.
The applicant is not entitled to a non-earner benefit of $185.00 per week from September 13, 2023, to date and ongoing
19I find that the applicant is not entitled to a non-earner benefit of $185.00 per week from September 13, 2023, to date and ongoing.
20Section 12(1) of the Schedule 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.
21At several points during the hearing the applicant was cautioned that his statements addressing the Tribunal constituted submissions and were not evidence, and that if he would like to provide evidence, he could do so by testifying under oath. As noted, the applicant preferred not to testify. The applicant relied on the evidence of his witnesses and certain key documents entered as exhibits at the hearing to establish the extent of his accident-related disability and to establish the related changes in his life. The preponderance of the applicant’s submissions and evidence focused on establishing that the applicant was managing his daily activities better prior to the subject accident than he was after it. However, the applicant did not meet his evidentiary burden of the legal test as laid out in the above paragraph.
22The applicant argues that he is entitled to a NEB because prior to the accident he was able to go to sleep peacefully and wake up peacefully at 9:00AM. After the accident, the applicant submits that he needs to wake up later, between 11:00AM and 1:00PM, due to pain and mental health symptoms. The applicant also submits, prior to the accident, he was able to engage in three activities per day and mentioned yoga, and swimming, cooking, household management, attending doctor appointments and maintaining a social life. He argues that he is no longer able to engage in these activities because of the accident. I do not have evidence of the extent of his ability to engage in these activities prior to the accident except for his submissions and self-reporting that he did engage in them. I also do not have evidence of the extent of his ability or inability to engage in them after the accident. Without some qualitative or quantitative particulars to consider, the applicant’s argument that he suffers a complete inability to carry on a normal life is not persuasive. He also submits that I should take into consideration that he was planning to ask his girlfriend to move in with him and that he was getting ready to do some volunteer work. These submissions are similarly not supported by evidence.
23The applicant further submits that he was at one point found to be 55% disabled when assessed in relation to his long-term disability benefits and that he had improved to 50% in or around 2015. Immediately after the accident, the applicant self-assessed his disability to be 95% which he argues improved by 10% over the past two years. The applicant’s current self-assessment is that he is 85% disabled. The applicant argues that although this is a self-assessment and he is not testifying, the evidence of his witnesses will substantiate this level of impairment. It was ultimately not established by either documentary evidence or by testimony at the hearing what methodology was used by the applicant to conclude these ratings or how this rating may address the NEB test, nor is a percentage rating part of the legal test for NEB. The preponderance of the evidence did not substantiate a complete inability to carry on a normal life by comparing the applicant’s pre and post accident activities.
24The respondent submits that it began to pay the NEB and requested insurer examinations (“IEs”) to gather information necessary to assess the applicant’s claim. As a result of the IEs, the respondent concluded that the applicant did not meet the NEB test and therefore discontinued NEB payments. While the applicant challenged the expert evidence presented by the respondent, alleging that it is biased and not objective, this decision does not turn on the strength or weakness of the respondent’s evidence. Since the onus is on the applicant to establish on a balance of probabilities that he meets the test, I will consider whether, prima facie, he has met his onus before I need to consider what weight to give the respondent’s expert evidence.
25The respondent refers me to the applicant’s My Activities form, completed by the applicant and dated April 1, 2024, approximately 7 months post-accident. I find that even if I accepted all of the information as reported by the applicant in the form, the applicant’s self reported limitations do not meet the threshold of a complete inability to carry on a normal life. The applicant did not challenge or refute, with compelling evidence, his self-endorsed answers contained in this form. I give the information contained in the form substantial weight for three main reasons. First, it documents the applicant’s limitations in his own words, second because it is contemporaneous as it is 7 months post-accident, and it is prior to the February 2025 accident which makes the applicant’s limitations due to the subject accident easier to parse from any limitations resulting from the subsequent accident. Third, it is the most detailed information I have about the applicant’s ability to engage in activities both prior to and after the subject accident.
26The form allows an insured to state their contrasting ability level for their usual day-to-day activities or tasks before and after the accident. The tasks covered by the categories provided in the form include personal care, functional ability, shopping, meals, cleaning, laundry, home maintenance activities, cognitive abilities, controlling emotion and behaviour, and communication. There are four ability levels to choose from as follows: can do all, can do partially, can do with help, and can not do. The applicant indicated in this form that before the subject accident, he could do all 42 of the tasks he used to engage in with no limitations. After the accident, the applicant indicated there was nothing he could not do. The form indicates that the applicant could still do either partially or all of his personal care, functional ability, shopping, laundry, home maintenance activities, cognitive abilities, controlling emotion and behaviour, and communication. Together, this means he could still do 38 of the 42 tasks after the accident either completely or partially. The only tasks that the applicant endorsed he can do but with help, post-accident, are meal preparation, cooking, cleaning bathrooms, and washing floors.
27The form also includes the applicant’s description of his limitations and an opportunity to describe other activities not specifically listed that he is having difficulty performing. The main reason provided in the form for the applicant’s post-accident limitation is limited physical and mental stamina. The following information is found in the form. The applicant endorses that he could do gentle swimming and gentle yoga classes before the accident but that he stopped doing these activities at some point due to the COVID-19 pandemic. He was getting ready to go back to these activities in the summer of 2023, but this is not established by evidence outside of his self reporting. Other limitations noted are, loss of balance at times when turning 180 degrees quickly, at times bumping into furniture or rubbing against a wall, hitting nearby objects when placing objects into a kitchen cabinet, sometimes forgetting why he went into a certain room and feeling frustrated, feeling more tiredness than before. He is relying on Uber Eats for meals, and professional workers to take care of the home when he cannot do so and that he sits to bathe rather than taking standing showers. The applicant does short physiotherapy exercises when he can and does very short sessions of gentle yin yoga at home. Overall, he rests more often, and feels that his lower back, legs, and the arches of his feet work much harder than they needed to pre-accident. On the preponderance of the evidence before me, the applicant did not meet his onus to establish that he suffers a complete inability to carry on a normal life. The evidence of the witnesses and some of the documents put to them are summarized as follows.
Dr. Jennifer Chew, Family Doctor
28Dr. Jennifer Chew is the applicant’s family doctor. Dr. Artman, from the same clinic as Dr. Chew, completed an OCF-3 dated June 6, 2024. Dr. Artman, in the OCF-3, endorsed the applicant as suffering a complete inability to carry on a normal life and explained that he was able to drive to the community centre and get into the pool for swimming prior to the accident. However, after the accident, he can barely drive to the community centre without symptoms and that cooking is a struggle because it is too exhausting, so he relies on Uber Eats. Dr. Artman did not testify, however, Dr. Chew testified that she has no reason to believe that the OCF-3 is inaccurate. The OCF-3 and Dr. Chew’s evidence did not establish that the applicant has an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. The evidentiary record does not address any meaningful particulars of the applicant’s abilities that would corroborate the opinion in the OCF-3.
29Dr. Chew’s evidence established that in her opinion, despite the applicant being on long term disability for an extended period prior to the accident, he was able to drive to the community centre and engage in activities and that he cannot do that now. She testified that the applicant was doing better right before the accident, in contrast to previous years, because he was cleaning and going for walks. However, Dr. Chew denied having knowledge of meaningful particulars such as how often the applicant engaged in these activities or whether he had stopped driving. During cross examination, Dr. Chew agreed the clinical notes and records state as of October 23, 2023, a few weeks post-accident, that the applicant is walking. In any case, in Dr. Chew’s opinion, the applicant is not as he was prior to the accident but this does not meet the threshold of the legal test for a NEB.
Dr. Qadeer Ahmad, Psychologist
30Dr. Qadeer Ahmad’s evidence did not establish that the applicant has an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. Dr. Ahmad is the applicant’s treating psychologist and has been treating him for approximately 20 years. Dr. Ahmad testified that the applicant had pre-existing driving anxiety, post-traumatic stress disorder, panic attacks, and that he took substantial medications including psychiatric medications. Dr. Ahmad testified that although the applicant had generalized anxiety, some insomnia, pain, some depressed mood at times prior to the accident, that all of this was well managed with the help of physicians and mental health service providers.
31After the subject accident, Dr. Ahmad testified that the applicant suffered a clear worsening or exacerbation of his symptoms including insomnia and that his sleep was impacted due to pain likely as a result of the accident. Further, that the applicant’s anxiety, fear, and concerns about his health became worse. Dr. Ahmad testified that as a result of the accident, the applicant found it difficult to maintain his activities of daily living, to manage his household, to go out to socialize or engage in activities in the community. Dr. Ahmad testified that all of this persisted for months after the September 10, 2023, accident. Dr. Ahmad also testified that there were periods of time the applicant was sensitive to light and sounds so both of these aspects were managed at the office during treatment sessions before they improved approximately 6 months after the accident. Dr. Ahmad indicated in a letter dated November 11, 2024, that the applicant is struggling to maintain his activities of daily living in a consistent manner. However, the letter does not address any meaningful particulars that would assist me in considering eligibility of a NEB.
32Dr. Ahmad could clearly establish causation. On cross examination, Dr. Ahmad clarified that in his opinion the applicant improved but certain aspects of the exacerbation persist. Dr. Ahmad provided examples including the applicant’s mental stamina, cognitively tiring quickly which leads to a loss of focus, memory, and concentration. Dr. Ahmad further testified that this affects the applicant’s ability to maintain concentration for cooking, social activities and recreational activities. Dr. Ahmad confirmed being aware of the subsequent accident in February 2025. Upon re-examination by the applicant as to which accident had the biggest impact on him, Dr. Ahmad opined that it was difficult to differentiate the two discrete events and that the subject September 2023 accident resulted in significant worsening of the applicant’s pre-existing symptoms, the subsequent February 2025 accident resulted in a relapse of symptoms that are very similar in both presentation and severity.
Dr. Jacob Boomgaardt, Physiatrist
33I find that Dr. Boomgaardt’s evidence was not assistive regarding the test for NEB. During the hearing, it was established that Dr. Boomgaardt first assessed the applicant on or around July 15, 2024, approximately 10 months post-accident. Dr. Boomgaardt’s evidence is that the applicant is under his care for post-concussion syndrome. In a letter dated August 28, 2025, Dr. Boomgaardt provides support for his opinion that the applicant meets the criteria for a concussion or mild traumatic brain injury. The letter raises concern that the applicant is not being adequately managed and needs comprehensive therapies with the goal of returning him back to his pre-accident functional baseline. However, on cross-examination, Dr. Boomgaardt confirmed that the letter is more directly addressing the more recent accident in February 2025 and that Dr. Boomgaardt has only seen the applicant before and after this subsequent accident. Dr. Boomgaardt could not testify to first-hand knowledge of the applicant’s status prior to the subject accident in September 2023. Dr. Boomgaardt’s evidence does not establish that he has an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. Rather, the focus is on advocating for further treatment to adequately manage the applicant’s post February 2025 condition.
Dr. Alex Tieu, Chiropractor
34I find that Dr. Tieu’s evidence was not assistive regarding the test for NEB. Dr. Tieu’s testimony mainly focused on the need for continuing treatment. Dr. Tieu reviewed a letter provided by his clinic dated November 12, 2024, approximately 14 months post-accident, concluding that while there has been improvement and the applicant feels that he is able to do much more of his activities of daily living compared to the start of his treatment, there is room for further improvement, and it is therefore recommended that treatment continue. Dr. Tieu’s evidence does not establish that the applicant has an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. This evidence does not address any meaningful particulars of the applicant’s abilities that would corroborate the opinion in the OCF-3 as to meeting the threshold for a NEB.
Two OCF-3s dated March 13, 2025
35Dr. Boomgaardt completed an OCF-3 dated March 13, 2025, which relates to both the subject accident in September 2023 and the subsequent accident in February 2025. It is endorsed that the applicant suffers a complete inability to carry on a normal life without an explanation addressing particulars of the applicant’s activities pre- or post-accident.
36Dr. Jillian Conway, Physician, also completed an OCF-3 dated March 13, 2025. This OCF-3, like the one reviewed above, states it is regarding both the subject accident and the subsequent accident. The applicant is endorsed to suffer a complete inability to carry on a normal life because of his inability manage his activities of daily living, specifically that he is limited in driving and cannot cook.
37I give these forms limited weight as they are submitted in reference to two separate dates of loss and do not distinguish between the September 2023 and February 2025 accidents. Importantly, the latter of which is not the subject of this hearing. Further, because they do not address meaningful particulars of the applicant’s activities such that I may review information as to how the authors of the forms came to their conclusions. The evidence before me does not corroborate the endorsement for a NEB.
38For the reasons above, on a balance of probabilities, I find that the applicant is not entitled to a non-earner benefit of $185.00 per week for the period in dispute.
Is the applicant entitled to $5,653.04 for chiropractic services, proposed by Elysian Wellness, in a plan dated December 18, 2024?
39To 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.
40The applicant did not make specific submissions addressing the goals of the plan and whether the stated goals are being met, however, the applicant made general submissions that he has a need for further treatment.
41The plan proposed the following goods or services:
i. Chiropractor’s Assessment, total body, at $100.00
ii. Chiropractor Med-rehab – includes initial assessments for OCF-23, OCF-18 and ss. 15 and 16 benefits, at $100.00
iii. Chiropractic therapy, multiple body sites, 16 sessions at $112.81 per hour for a total cost of $1,804.96
iv. Physiotherapy, multiple body sites, 16 sessions at $99.75 per hour for a total cost of $1,596.00
v. Massage therapy, multiple body sites, 16 sessions at $58.19 per hour for a total cost of $931.04
vi. Pharmacotherapy, total body, by a registered nurse, 4 sessions at 250.00 per session for a total cost of $1,000.00. This is further explained as: “IV infusion prescribed by our Nurse Practitioner but administered by our Registered Nurse. It is a mix of electrolytes (to help with headache), and a broad spectrum of vitamins and amino acids to help with headaches, fatigue, and appetite issues/nutritional issues.”
42The plan dated December 18, 2024, lists the following injury and sequelae information. Whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, Concussion, Other disorders of temporomandibular joint, Sprain and strain of thoracic spine, Sprain and strain of lumbar spine, Low back pain.
43The plan’s goals are pain reduction, increased range of motion, increase in strength, headache and fatigue reduction and a return to activities of normal living.
44The evidence offered by both parties, including the OCF-3 by Dr. Lise Artman from the applicant’s family doctor’s office and as noted in the physiatry report by Dr. Mohammed Abdul-Wahab Khan, s. 44 Physiatrist, confirm that the applicant suffered from fibromyalgia prior to the accident. There is no dispute that the applicant was receiving facility-based treatment for his pain symptoms prior to the accident and that the applicant’s pre-existing conditions are a barrier to recovery, resulting in prolonged recovery.
45Approximately a month prior to the date of the OCF-18, on November 14, 2024, Dr. Khan assessed the applicant resulting in a report dated December 27, 2024, as part of a multi-disciplinary examination including assessments by a neurologist, psychiatrist, and occupational therapist. The physiatry report notes the applicant’s self-reported pain in his neck to be 8/10, constant in frequency and duration, and improved by massage and heat. The applicant reported his mid-low back pain to be a 7-8/10, constant in frequency and duration, and improved by massage, pain medication and heat. The applicant’s bilateral shoulder pain is reported to be 9/10, constant in frequency and duration and improved by massage and medication. In Dr. Khan’s physiatry opinion, the applicant was diagnosed with accident-related sprain/strain of the bilateral shoulder girdle, and the cervical, thoracic, and lumbar spine. Testing confirmed reduced ranges of motion in the cervical spine. While it was Dr. Khan’s opinion that the applicant should engage in a self-directed exercise program, the report does not consider whether the proposed plan is reasonable and necessary.
46I find that Dr. Khan’s findings and opinions largely agree with the proposed plan’s diagnoses and are silent on concussion and disorders of temporomandibular joint (“TMJ”). Further, I find that Dr. Khan considered a substantial amount of information that mirrors the information contained in the proposed plan, including the applicant’s prior and concurrent conditions, his need for treatment prior to the accident, and his barriers to recovery.
47While there is a prescription for physiotherapy for TMJ pain a year after the accident by the applicant’s family doctor’s office, the respondent’s position is that the evidence does not support this is accident related. I was not referred to an opinion by the applicant that it was caused by the subject accident. Furthermore, the plan does not break down the proposed treatment that would allow me to relate it back to the specific injury or sequelae it was addressing. For this reason, any of the TMJ related proposed goods and services are not established to be reasonable and necessary, and I do not have sufficient information to parse out the proposed goods and services on this basis.
48There is a disagreement between the parties as to whether the applicant suffered a concussion or mild traumatic brain injury as a result of the subject accident. As it relates to entitlement to the proposed plan, Dr. Tieu testified that the applicant would receive vestibular therapy although it was not listed in the proposed plan. Since this is not treatment that is listed in the proposed plan, I do not need to assess the evidence of Dr. Boomgaardt and Dr. Desai as to whether or not the applicant meets the criteria for a concussion diagnosis. An analysis of the diagnosis does not assist me in this case. Dr. Tieu agreed that it would be helpful if vestibular therapy was listed as a proposed treatment so that the respondent would be aware of it. In this regard, Dr. Tieu clarified that he was only providing treatment from a musculoskeletal perspective, so his evidence on vestibular therapy is of limited assistance to me.
49The proposed pharmacotherapy by a nurse practitioner was not established at the hearing to be reasonable and necessary. On cross examination, Dr. Tieu testified that he was not personally aware of any report supporting this treatment. The respondent’s denial notice dated January 3, 2025, states that the pharmacotherapy, electrolytes and vitamins, are not prescribed medications and are not covered under the Schedule.
50The respondent’s denial notice states that the section 44 medical evaluation reports dated December 27, 2024, establish that no further in-clinic treatment is required from a neurological and physical perspective. Further, that a self-directed exercise program was recommended. I find that the s. 44 physiatry report was not assessing whether the proposed plan at issue is reasonable and necessary, but the information contained in the report is helpful in getting a wholistic picture of the applicant’s status at the time of the assessment.
51The preponderance of the evidence supports the applicant as having significant documented pre-accident conditions that were being treated and managed prior to the accident. Further, that these prior conditions were exacerbated and continue to be a barrier to recovery. I have considered that after having access to chiropractic, physiotherapy, and massage services according to the applicant’s self-report in November 2024 to IE assessor, Dr. Desai, physiotherapy and massage make his symptoms bearable. Further, to IE assessor, Dr. Khan, the applicant reported that massage and medication are the key to the applicant’s improvement. Since this is the not the first treatment plan, it records the applicant’s improvement based on prior treatment including in range of motion and pain. However, it is not established that all of the services proposed, or the full amount of the plan is reasonable and necessary as reviewed below.
52Accordingly, I find that the applicant has not established on a balance of probabilities that a chiropractor’s assessment or treatment is reasonable and necessary. The applicant did not establish through evidence that chiropractic services are reasonable and necessary. I have also considered that any prior benefit to the applicant from chiropractic services is not supported by the evidentiary record. Similarly, the evidence does not address the specific goals of chiropractic treatment and how they would be met through such treatment.
53I further find that the applicant has not established all of the physiotherapy treatment as being reasonable and necessary as it is suggested to include treatment of non-accident-related symptoms or impairments, as reviewed above. In this regard, I have considered that I am dealing with consumer protection legislation and that the applicant should get the treatment that is reasonable and necessary sooner rather than later. With this in mind, I find that 8 sessions instead of 16 proposed sessions are reasonable and necessary to account for the issue and that the clinic may choose to propose further reasonable and necessary treatment, if any, with consideration of this decision. Having immediate access to these sessions will allow the applicant to address his ongoing physical tolerance, strength, pain and range of motion symptoms. Lastly, to address the applicant’s pain levels, in addition to physiotherapy sessions, I further find that the massage therapy sessions are reasonable and necessary. The applicant has reported benefits from both physiotherapy and massage services and continues to improve.
54Accordingly, on a balance of probabilities, I find that the applicant is entitled to the following:
i. Chiropractor Med-rehab – includes initial assessments for OCF-23, OCF-18 and ss. 15 and 16 benefits, at $100.00
ii. Physiotherapy, multiple body sites, 8 sessions at $99.75 per hour for a total cost of $798.00
iii. Massage therapy, multiple body sites, 16 sessions at $58.19 per hour for a total cost of $931.04
55The applicant has not established entitlement to the remaining balance of the plan.
Is the applicant entitled to attendant care benefits in the amount of $800.00 per month from September 13, 2023, to date and ongoing?
56I find that the applicant has not prepared and submitted an application for attendant care benefits pursuant to the Schedule.
57Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care benefits (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
58Section 42(5) of the Schedule provides that an insurer is not required to pay an expense incurred before a Form 1 is prepared and submitted to the insurer by an occupational therapist or registered nurse.
59The parties agree that there is no evidence that the Form-1 was provided to the respondent other than after this application was filed with the Tribunal, as part of the document exchange process in preparation for this hearing. The applicant argues that the respondent received it at some point because they received it after he commenced the application at this Tribunal, as part of document exchange. Therefore, I should consider the issue substantively. The respondent argues it never received the Form-1 to consider as required by the Schedule, and therefore there is no denial of ACBs before me.
60Under the circumstances, I find that the exchange of documents for the purpose of moving the application forward to a hearing at this Tribunal does not satisfy the requirement of s. 42(1)(b) of the Schedule that the Form-1 be prepared and submitted to the insurer by an occupational therapist or a registered nurse. As a result, the issue of ACBs has not been denied by the respondent and there is no substantive dispute for me to resolve. This Issue needs to be crystalized before I may assess and determine the issue and I find that the issue cannot be considered crystalized until an application is prepared and submitted in accordance with the Schedule, and correspondingly, either denied by the respondent or deemed to be so. Section 42(5) of the Schedule is also clear that an insurer is not required to pay ACBs before the Form 1 was submitted.
61For these reasons, I find that the applicant has not met his onus to prove that he has prepared and submitted a Form-1 as required by the Schedule.
Interest
62The applicant is entitled to interest on overdue benefits pursuant to s. 51 of the Schedule.
Award
63The 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. It is well settled that an award should not be ordered simply because an adjudicator determined that an insurer made an incorrect decision. Rather, in order to attract a s. 10 award, the insurer’s conduct must rise to the level of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate. I find that the applicant’s allegations that the insurer unreasonably withheld or delayed payments of benefits is not supported by evidence of conduct that would rise to this threshold. For this reason, the respondent is not liable to pay an award on the entitled benefits.
ORDER
64For the reasons above, I make the following orders:
i. The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from June 10, 2024, to date and ongoing.
ii. The applicant is not entitled to a non-earner benefit of $185.00 per week for the period in dispute.
iii. The applicant is entitled to $1,829.04 out of $5,653.04 proposed for physiotherapy and massage services in a plan dated December 18, 2024, plus interest under s. 51.
iv. The applicant has not applied for attendant care benefits and therefore assessment of this issue is premature.
v. The respondent is not liable to pay an award under s. 10 of Reg. 664.
Released: January 12, 2026
__________________________
Amar Mohammed
Adjudicator