Citation: Alzhubi v. Co-operators General Insurance Company, 2026 ONLAT 25-005059/AABS

Licence Appeal Tribunal File Number: 25-005059/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:

Manal Alzhubi

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Henry Harris

APPEARANCES:

For the Applicant:

Dale Rosenberg, Counsel

For the Respondent:

Suzanne Armstrong, Counsel

HEARD by Videoconference:

February 10 and 11, 2026

OVERVIEW

1Manal Alzhubi (the “applicant”) was involved in an automobile accident on April 20, 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 Co-operators General Insurance Company (the “respondent”) 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. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from May 18, 2023 to April 17, 2025?

iii. Is the applicant entitled to services, proposed by Oxford Spine in a treatment plan/OCF-18 (“plan”) submitted as follows:

a) $3,572.00 for chiropractic and physiotherapy treatments, in a plan submitted May 1, 2023; and

b) $5,416.00 for chiropractic and physiotherapy treatments, in a plan submitted March 4, 2024?

iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Oxford Spine in a treatment plan submitted February 14, 2024?

RESULT

3The applicant remains subject to the MIG.

4As the applicant remains in the MIG, there is no need to consider if any of the plans in dispute are reasonable and necessary.

5The applicant is not entitled to an NEB.

6The application is dismissed.

PROCEDURAL ISSUE

7At the start of the hearing, the respondent raised concerns that the applicant had not complied with the case conference report and order dated August 27, 2025 (the “CCRO”) as follows:

a. Document brief was served 14 days before the hearing, rather than 21 days pre-hearing;

b. Did not exchange any of the documents ordered under “Document Exchange Between the Parties”, which was ordered to be exchanged 30 days from the date of the case conference; and

c. Did not exchange or file a list of witnesses that she intends to call to give evidence at the hearing, which was ordered to be exchanged 45 days before the hearing and then finalized and filed 21 days pre-hearing.

8The respondent argued that language in the CCRO is mandatory for complying with these items, citing the language “shall” and “must”. It requested that the applicant’s document brief should not be admitted and that the applicant’s evidence should be limited to witness testimony at the hearing. Further, it requested that the Tribunal draw an adverse inference to the documents that were ordered and not exchanged, that these documents are detrimental to the applicant’s position.

9The applicant acknowledged non-compliance with the CCRO and took full responsibility, explaining it was due to inadvertence as counsel thought the file was being handled by a paralegal who took a leave of absence. The applicant submits there are no new documents in her brief, and that the respondent was already in possession of these documents for several months so would not have impacted its ability to prepare for the hearing.

10There is no dispute that the applicant has not complied with the CCRO as set out above. Timelines are important and should be adhered to by all parties. However, where there is non-compliance, Rule 9.3 requires consideration of all relevant factors, including prejudice to the parties, when considering whether to admit the document brief as evidence.

11Bearing this in mind, I am not persuaded that the respondent was prejudiced by the late filing of the applicant’s document brief, as it has not identified any prejudice that resulted from the late filing. Further, the document brief is limited to four tabs, and the respondent has not challenged the applicant’s suggestion that it already had the documents included in the brief. Regardless, while the applicant’s document brief was filed 7 days late, the respondent received it 14 days prior to the hearing. I consider this to be sufficient time to review in order to present its case. The applicant, however, would potentially be significantly prejudiced if its document brief was excluded from consideration by the Tribunal. In weighing the prejudice to the parties, the respondent’s request to exclude the applicant’s document brief is denied.

12Applying the same principles to the applicant’s non-compliance with the document exchange and witness list, I declined to make a ruling on drawing an adverse inference at this stage of the hearing without hearing any of the evidence.

ANALYSIS

Background

13On April 20, 2023, the applicant was the front seat passenger of a vehicle driven by her husband. They were travelling in slow traffic when their vehicle rear-ended another vehicle. The applicant had no external signs of trauma, she did not exit the vehicle at the scene and no emergency services attended the scene. The vehicle was driven home.

14The applicant did not seek medical treatment at the time of the accident. She visited her family doctor for the first time three months after the accident, and did not mention the accident at that visit.

The applicant remains within the Minor Injury Guideline (MIG)

15I find that the applicant has not established on a balance of probabilities that she suffers from an accident-related injury or condition that warrants removal from the MIG.

16Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

17An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

18In all cases, the burden of proof lies with the applicant.

Pre-existing conditions

19The applicant submits that she should be removed from the MIG because she suffered from physical and psychological conditions prior to the accident which has been exacerbated by the accident, and warrants her removal from and treatment beyond the MIG limit.

20In support of her position, she relies on the clinical notes and records (“CNRs”) of her family doctor, Dr. Ahmed Hijazi; the OCF-3 Disability Certificate, completed by Dr. Jamal Alaloul, chiropractor, dated May 2, 2023 (the “OCF-3”); and the insurer’s examination (“IE”) report of Dr. Abdul-Wahab Khan, physiatrist, dated December 18, 2023.

21The respondent does not deny that the applicant has pre-existing medical conditions. The respondent submits, however, that the applicant has not provided compelling medical evidence to support that her pre-existing conditions prevent her from achieving maximal recovery if subject to the MIG. The respondent relies on the Divisional Court decision in Scarlett v. Belair Insurance, 2015 ONSC 3635, as authority for interpreting the test under s. 18(2) of the Schedule.

22I find that the evidence indicates that the applicant had pre-accident neck and back pain. Multiple entries in the family doctor CNRs in 2022 and 2023 pre-accident document her complaints of chronic neck and back pain. The applicant testified that she had pain in her neck and back pre-accident, but did not recall if she was diagnosed with chronic pain. The OCF-3 notes lower back and neck pain as a prior condition. Further, in the physiatry IE, Dr. Khan noted the applicant reported having a prior history of neck and back pain dating back approximately seven years. I find that the applicant has established that she has a pre-existing condition.

23However, for the following reasons, I am not satisfied that the applicant has met the second part of the test pursuant to s.18(2) of the Schedule. As set out above, there must be compelling medical evidence that the pre-existing condition would preclude recovery from the accident-related minor injury if the applicant were subject to the MIG.

24While the applicant has pre-existing neck and back pain, I was not pointed to any contemporaneous evidence establishing how the pre-existing condition is a barrier to recovery from her accident-related minor injuries. There is no evidence of her attending a hospital following the accident. Her first visit to her family doctor was on July 13, 2023, three months post-accident. There was no mention of the accident at that visit, and the CNRs indicate the purpose of the visit was to follow up on headaches and completion of the Ontario Disability Support Program (“ODSP”) application. The CNRs further indicate weaning her off a medication for headaches (gabapentin) as it was not helping her. This evidence does not address accident-related injuries or how the applicant is prevented from recovering in the MIG due to a pre-existing condition.

25The applicant also relies on the OCF-3, which lists various accident-related injuries and sequalae information, including sprain and strain of cervical spine and low back pain. However, the OCF-3 alone is not sufficient for the applicant to satisfy her evidentiary burden. Further, the applicant has not explained how this information in the OCF-3, prepared less than two weeks post-accident, supports a finding that her pre-existing condition would preclude recovery in the MIG.

26In contrast, the IE report of Dr. Khan directly addressed the applicant’s pre-existing condition and its impact on accident related injuries. Specifically, Dr. Khan found that the applicant’s pre-existing neck and back symptoms did not prevent her from achieving maximal medical recovery in the MIG. Dr. Khan testified that the applicant had already achieved maximal medical recovery from accident-related sprain/strain injuries at the time he assessed her in December 2023. I find Dr. Khan’s opinion persuasive as he reviewed the applicant’s medical history, and conducted a physical examination. In his testimony, he noted there were no CNRs from medical doctors regarding accident-related injuries. Dr. Khan found the applicant’s current level of impairment would likely exist in the absence of the accident, given her long-standing history of chronic neck and back pain.

27Finally, I acknowledge the applicant appears to have various pre-existing psychological concerns. Pre-accident, the CNRs of Dr. Hijazi document her reporting in February 2022 a depressed mood and irritability going on for years, and it being worse this year (2022) than before. She avoids interacting with people due to irritability and anger. However, in her testimony, the applicant denied having depression pre-accident. This inconsistency complicates establishing pre-accident psychological conditions. Further, in her submissions, the applicant did not identify what psychological condition would preclude her from recovering from her accident-related minor injuries if the applicant were subject to the MIG. As such, she has not satisfied the test under s. 18(2).

28Accordingly, I find that the applicant has not established on a balance of probabilities that her pre-existing condition would prevent her from achieving maximal medical recovery if she were kept within the MIG. Therefore, I find that the applicant is subject to the MIG.

29As I have found that the applicant is not removed from the MIG, it is not necessary to engage in an analysis of whether the disputed plans are reasonable and necessary as a result of the accident.

The applicant is not entitled to an NEB

30I find the applicant has not established entitlement to an NEB.

31Section 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 Insurance Co., 2009 ONCA 391 (“Heath”), which focuses on a comparison of the applicant’s pre- and post-accident activities.

32The applicant submits that she has a complete inability to carry on a normal life as a result of the accident because of her physical and psychological conditions. She relies on the OCF-3 and the OCF-12 Activities of Normal Life dated October 1, 2023 (the “OCF-12”).

33The respondent counters that the applicant has not met her onus of proving that she suffers a complete inability to carry on a normal life due to ongoing impairments as a result of the accident. The respondent submits that it is not enough for an applicant to simply say they cannot do their pre-accident activities, but rather they must provide objective medical evidence of an inability to perform their activities.

34I find that the applicant has not proven on a balance of probabilities that he suffers from a complete inability to carry on a normal life, for the following reasons.

35The applicant has not directed me to any corroborating medical opinion or medical evidence confirming a complete inability to carry on a normal life. Although she submits an OCF-3 prepared a couple weeks after the accident by Dr. Alaloul, chiropractor, which indicates such an inability, it is not determinative on its own. The OCF-3 is a form used to apply for benefits and does not constitute a comprehensive assessment of the applicant’s impairments.

36The applicant has not provided any CNRs from her family physician or treating doctor, which establish her accident-related impairments, and how these impairments prevented her from engaging in her pre-accident activities. The applicant references a referral to Bloor Pain Specialists for steroid injections for neck pain, in which Dr. Joshua Goldstein, physiatrist, prepared a pain management consultation report dated October 12, 2023. The report notes that the applicant did not report any injuries or inciting events and that her pain complaint is not part of a WSIB or legal claim. I find this does not support any impairment related to the accident or worsening of the applicant's pre-existing functional impairments.

37The applicant was not working at the time of the accident, and a typical day involved doing house chores and grocery shopping with her husband. Pre-accident, she had no hobbies, would have visits with family and only went to mosque on special occasions if essential. She testified as to various changes to her pre-and post-accident activity levels and relies on the OCF-12 documenting her self-reported abilities in her usual activities. However, in her testimony she did not recall completing the OCF-12 and could not confirm if it was her handwriting. Further, various activities that she marked off as being able to do pre-accident were contradicted by her pre-accident medical records. For example, she indicated that pre-accident she had no issues with walking, meal preparation or housework. However, the CNRs of Dr. Hijazi contain pre-accident consultation notes of the applicant complaining on May 2, 2022 of issues walking due to chronic pain, and on May 18, 2022 that her daughter often does most of the meal preparation and major housework. When asked about this in her testimony, the applicant indicated that she did not remember. I find that this calls into question the reliability of the applicant’s reporting of her pre-and post-accident activity levels, which is not supported by the medical evidence.

38The applicant relies on self-reported pain as evidence of her inability to engage in pre-accident activities. However, Heath requires that, where pain is the primary factor, the applicant must demonstrate that it practically prevents engagement in substantially all of those activities. I find that the applicant’s evidence does not meet this requirement.

39For the reasons above, I find that the applicant has not met her onus in proving on a balance of probabilities that she has a complete inability to carry on a normal life because of any accident-related impairments. Accordingly, the applicant is not entitled to an NEB.

ORDER

40For the reasons outlined above, I find that:

i. The applicant shall remain in the MIG;

ii. As the applicant is in the MIG, it is not necessary to consider if the plans in dispute are reasonable and necessary;

iii. The applicant is not entitled to an NEB; and

iv. The application is dismissed.