Citation: Alzhubi v. Co-operators General Insurance Company, 2026 ONLAT 25-005094/AABS

Licence Appeal Tribunal File Number: 25-005094/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:

Talal Alzhubi

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Steve Gilchrist

APPEARANCES:

For the Applicant:

Dale Rosenberg, Counsel

For the Respondent:

Suzanne Armstrong, Counsel

Interpreter:

Sura Jamid, Arabic Language

HEARD: by Videoconference:

February 24 & 25, 2026

OVERVIEW

1Talal 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 to be decided at the hearing 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? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from May 20, 2023, to ongoing?

iii. Is the applicant entitled to services, proposed by Oxford Spine as follows:

i. $5,080.00 for chiropractic and physiotherapy treatments, in a treatment plan submitted November 9, 2023;

ii. $2,200.00 for a chiropractic treatment, in a treatment plan submitted May 1, 2023; and

iii. $5,416.00 for chiropractic and physiotherapy treatments, in a treatment plan submitted March 4, 2024?

iv. Is the applicant entitled to $540.00 for mileage, proposed by Oxford Spine in a treatment plan submitted May 1, 2023?

v. Is the applicant entitled to $2,200.00 for psychological assessment, in a treatment plan submitted February 14, 2024?

RESULT

3For the reasons that follow, I find that:

i. The applicant’s injuries are predominantly minor and he is held within the MIG.

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

iii. The applicant is not entitled to the NEB in dispute.

PROCEDURAL ISSUE

4At the outset of the hearing, the respondent objected to applicant’s failure to produce the documents and witness list which had been ordered in the Case Conference Report and Order (“CCRO”). Citing Rule 9 of the License Appeal Tribunal Rules, the CCRO in this matter included provisions for each party to produce documents and supply a witness list 45 days prior to the hearing and final list at 21 days prior to the hearing.

5The respondent asked the Tribunal to draw an adverse inference from the failure of the applicant to produce the documents ordered in the CCRO.

6Rule 9.1 states “The parties shall exchange all documents, witness lists, and anything else they intend to rely on as evidence at the hearing”. The respondent noted that the wording of paragraph 22 in the CCRO indicates that this is not an option or suggestion, but that the parties “shall” and “must” file the witness lists.

7The respondent indicated that it had anticipated that the applicant would testify in this hearing but was concerned there might be other witnesses, as originally proposed in the CCRO.

8In addition, paragraph 12 of the CCRO had required that the following documents be delivered by the applicant to the respondent within 30 days of the Case Conference:

a. Updated clinical notes and records from Dr. Hijazi from December 28, 2023, to date of case conference.

b. Complete clinical notes and records of any specialists visited regarding the subject motor vehicle accident from the date of loss to the date of case conference.

c. Complete Ontario Health Insurance Plan summary from one-year prior to the date of loss to date of case conference.

d. Complete Employment Insurance, Ontario Disability Support Plan, Ontario Works, and Canada Pension Plan Disability files from one- year prior from the date of loss to date of case conference, if any.

e. Complete employment file from UBER and any other employers from one-year prior to the date of loss to date of case conference.

f. Canada Revenue Agency Notice of assessment and all T slips for the years 2022, 2023, and 2024.

9The Case Conference in this matter was held on August 20, 2025 which meant the deadline for producing the documents was September 19, 2025.

10The applicant’s counsel admitted to the failure to provide a witness list, as required, but he noted the applicant would be the only witness he would be calling.

11The applicant conceded he had not produced all the documents listed in paragraph [7]. The applicant provided no explanation for the failure to abide by the requirements of the CCRO but noted the Applicant’s Brief included all the documents in his possession. In fact, aside from the clinical notes and records (“CNRs”) of the family doctor and an OCF-3, the applicant produced none of the documents related to medical treatments, the OHIP summary, any documents related to the applicant’s employment and any documents related to other government benefits the applicant may have received pre- and post-accident.

12The applicant provided no explanation for the failure to produce the documents.

Procedural Issue Result

13CCROs form the basis for the conduct of all Tribunal hearings and parties are required to comply with the requirements demanded of them in that document.

14As the applicant has an inherent right to testify in this hearing and notwithstanding the breach of the CCRO of failing to provide a witness list, I find that the respondent will suffer no prejudice as it would reasonably have assumed the participation of the applicant and the respondent had indicated she had prepared accordingly.

15The consequence of the failure of the applicant to produce the documents listed in the CCRO will prohibit him from relying on any of those documents at this hearing. While the failure of a party to produce documents ordered to be produced by the Tribunal may attract a negative inference under certain circumstances, I find that it is unnecessary to draw a negative inference in this case because the applicant did not address his evidentiary onus on any of the issues in dispute. Accordingly, my decision does not turn on whether I make an adverse inference.

ANALYSIS

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 limit?

16The applicant has not met his onus to establish he should be removed from the MIG.

17Section 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”.

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

19The applicant submits that he be removed from the MIG because he suffered a psychological impairment and chronic pain with a functional impairment as a result of the accident.

Should the applicant be removed from the MIG on the basis of chronic pain with a functional impairment?

20On April 20, 2023, the applicant suffered an automobile accident in which he rear-ended another car. The applicant submits that, post-accident, he suffered psychological injuries and shoulder and back injuries. The applicant claims that, as a result of those injuries, there has been significant negative impact on his activities of daily living, including performing housework, climbing stairs and driving.

21The applicant testified he had no health issues prior to the accident but he continues to suffer from accident-related pain on his left side, and it is most pronounced when he is lying in bed. The applicant also testified he has difficulty in lifting heavy loads, i.e. a fridge.

22After the accident, the applicant testified he began to experience pain behind his left shoulder which he suspects was caused by the seatbelt. However, the applicant did not attend hospital, his family doctor or any other medical practitioner in the aftermath of the accident.

23In fact, his first visit to his family doctor, Dr. Ahmed Hijazi, was 8 months post-accident on December 28, 2023. This was the only CNR from his family doctor that was provided which made any reference to the subject accident. The applicant supplied no CNRs from his family doctor after March 6, 2024.

24Based on the self-reporting of the applicant, Dr. Hijazi noted that the applicant was suffering from muscular pain in his left chest and back/shoulder which were likely secondary to the seat belt injury. Dr. Hijazi recommended continued physiotherapy as well as the conservative use of Tylenol/Advil and Voltaren.

25In that same CNR, the doctor observed there was no deformity or dislocation noted in the affected shoulder. The doctor ordered an x-ray of the left chest and ribs to rule out fractured ribs as the source of the applicant’s reported pain.

26I find that this single reference in the CNRs fails to provide the necessary evidence to support the applicant’s claim of chronic pain, both from its failure to demonstrate timely and compelling proof of causation, by the accident, but also by the failure to demonstrate any functional impairment.

27The applicant provided was the x-ray ordered by Dr. Hijazi and which was performed on the applicant on January 2, 2024, by MyHealth Centre. The conclusions of that x-ray are that the applicant has: 1. No acute or active thoracic abnormality, and 2: Diffuse osteopenia, with no displaced rib fracture. I find there is nothing in that x-ray analysis that diagnoses any injuries in the applicant’s shoulder or establishes any accident-related injury.

28The applicant underwent a series of physiotherapy treatments, which he claimed were providing him with some relief, but which he claimed he discontinued when the funding from the respondent was exhausted. No evidence from the physiotherapy clinic was provided by the applicant.

29The applicant is also relying on an OCF-3 prepared by Oxford Spine Center on May 2, 2023. In that document, Dr. Alaloul listed the patient’s accident-related injuries as: “headaches, concussion, injury of muscle and tendon at wrist and hand level, lumbago with sciatica, malaise and fatigue, problems related to lifestyle, injury of muscle and tendon at thorax level, dizziness and giddiness, anxiety disorder unspecified, and problems related to life management difficulty.”

30The respondent submits that the OCF-3 by the Oxford Spine Center should not be considered by the Tribunal. The respondent asserts that OCF-3s are not medical records and, more importantly, it was completed by a chiropractor and offered diagnoses which are outside of his scope of practice. I see no valid reason to exclude the OCF-3 from consideration, but I would agree that it carries less weight than reports by assessors or the CNRs of the family doctor.

31There are significant gaps in the medical records provided by the applicant. The applicant indicated that these gaps can be explained by his aversion to going to doctors. The applicant stated that they have a limited ability to assist in a patient’s recovery and: “We know once we go to the doctor he can’t do much, only give Tylenol and drink water.”

32While I acknowledge the applicant’s statement that he has an aversion to visiting doctors, the result is that there is insufficient evidence, in the CNRs before me, to establish a credible claim for chronic pain.

33The applicant attended a one-hour, in-person physiatry insurer’s examination with Dr. Abdul-Wahab Khan. After that examination, Dr. Khan issued a report, dated December 23, 2023, in which he diagnosed the applicant as suffering from: 1. Cervical spine sprain/strain 2. Bilateral trapezius/posterior shoulder girdle sprain/strain and, 3. Thoracolumbar spine sprain/strain.

34Dr. Khan concluded that there is no accident-related diagnosis, impairment, or active underlying musculoskeletal pathology that would preclude the applicant from performing his normal life activities. Moreover, Dr. Khan concluded that the applicant’s accident-related physical symptoms are consistent with sprain/strain injuries that would be considered ‘minor’ in nature as defined by the Schedule. Dr. Khan noted the applicant had a normal range of motion for his neck and a slightly reduced range of motion for his shoulders and lower back.

35None of the conclusions and diagnoses provided by Dr. Khan were specifically challenged by the applicant.

36The respondent asserts that the applicant has failed to meet his onus of proving that he has suffered accident-related chronic pain with a functional impairment. The respondent asserts that it isn’t enough for the applicant to simply state he isn’t performing or can’t perform an activity, rather, he must prove any impairment is due to the accident. The applicant continues to maintain the same workload as an UBER driver, and he has actually increased his functional activities after the accident. The respondent seeks to have the applicant’s injuries defined as “minor” and the applicant held within the MIG.

37I find that the applicant’s self-reporting of chronic pain is not supported by the limited medical evidence. The applicant chose not to provide any independent medical assessments which supported his claims of serious physical injuries. The applicant has not met his onus of demonstrating he suffers from chronic pain with functional impairment.

Should the applicant be removed from the MIG due to psychological injury?

38I find that the applicant has supplied no objective evidence to substantiate his claim that he sustained a psychological injury as a result of the accident.

39Since the accident, the applicant testified he feels anxiety when driving, particularly when accompanied by a family member and he fears a repetition of the accident. The only other evidence provided by the applicant was his own testimony recounting difficulty sleeping and experiencing nightmares about the accident.

40The sole reference in any CNR to a psychological issue is found in the visit to the family doctor, eight months after the accident. In that CNR, Dr. Hijazi noted that the applicant claimed that he did not lose consciousness during the accident nor did he suffer a head injury. There is nothing in the CNRs of Dr. Hijazi which support the applicant’s claim of psychological injury.

41Despite the significance of the psychological component of his request to be removed from the MIG, the applicant failed to attend any psychological counselling or assessment.

42The applicant’s failure to provide medical evidence which demonstrates he suffers from psychological injuries means that he has not met his onus.

43After considering the submissions and evidence of the parties and on the balance of probabilities, I find the applicant’s injuries are minor and he should be held within the MIG.

Is the applicant entitled to the treatment plans in dispute?

44As I have found that the applicant continues to be held within the MIG and the parties have agreed that the MIG limits have been exhausted, it is not necessary for me to determine whether the treatment plans in dispute are reasonable and necessary.

Is the applicant entitled to a NEB?

45I find that the applicant is not entitled to an NEB for the period in dispute.

46Section 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.

47The respondent asserts that the applicant does not suffer from a complete inability to carry on the activities of a normal life.

48The evidence before me is that the applicant had been employed as an UBER driver at the time of the subject accident. He has testified that, prior to the accident, he was completely independent in his activities of daily living, he shared housekeeping duties, and he worked approximately 10 hours per week. This conforms to the self-reporting of the applicant as part of the physiatry insurer examination by Dr. Khan on December 7, 2023.

49I was provided with no evidence as to why the applicant elected NEB instead of the income replacement benefit.

50The testimony of the applicant is that he continues to be fully independent in his activities of daily living and that he continues to work approximately 10 hours per week as an UBER driver. As a consequence of injuries sustained by his wife, the evidence is that the applicant has actually increased his percentage of the housekeeping duties, particularly housekeeping and cooking, since the date of the subject accident.

51As a result of his physiatry insurer’s examination, Dr. Khan concluded that the applicant does not suffer a complete inability to carry on a normal life as a result of subject accident.

52In Heath, it was established that there must be a comparison of the pre-accident and post-accident function of the applicant and that the applicant must then prove that his injuries prevent him from engaging in substantially all of his pre-accident activities. In this case, that test is clearly not met, as the applicant has maintained, or increased, his pre-accident activities.

53I was provided with no evidence by the applicant that he meets his onus to demonstrate his eligibility for an NEB, so I don’t need to turn to the respondent’s submissions on this matter.

54I find that the applicant is not entitled to the NEB in dispute.

ORDER

55The Tribunal orders:

i. The applicant’s injuries are predominantly minor and he is held within the MIG.

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

iii. The applicant is not entitled to the NEB in dispute.