Citation: Ebadi v. CAA Insurance Company, 2026 CanLII 48401

Licence Appeal Tribunal File Number: 24-013232/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:

Zuhra Ebadi

Applicant

and

CAA Insurance Company

Respondent

DECISION

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Carols Ortiz, Paralegal

For the Respondent: Derek Ballard, Counsel

HEARD: By way of written submissions

OVERVIEW

1Zuhra Ebadi, the applicant, was involved in an automobile accident on April 30, 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, CAA 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 a non-earner benefit (“NEB”) of $185.00 per week from September 2, 2023 to April 30, 2024?

ii. Is the applicant entitled to $2,096.25 for chiropractic services, proposed by Doctors Health Group Inc. in a treatment plan/OCF-18 (“plan”) dated September 29, 2022?

iii. Is the applicant entitled to $2,315.30 for chiropractic services, proposed by Doctors Health Group Inc. in a plan dated February 13, 2023?

iv. Is the applicant entitled to $2,456.20 for chiropractic services, proposed by Doctors Health Group Inc. in a plan dated April 17, 2023?

v. Is the applicant entitled to $2,524.05 for chiropractic services, proposed by Doctors Health Group Inc. in a plan dated May 16, 2023?

vi. Is the applicant entitled to $2,227.03 for chiropractic services, proposed by Doctors Health Group Inc. in a plan dated October 26, 2023?

vii. Is the applicant entitled to $1,301.79 for chiropractic services, proposed by Doctors Health Group Inc. in a plan dated October 18, 2023?

viii. Is the applicant entitled to $2,922.68 for chiropractic services, proposed by Doctors Health Group Inc. in a plan dated December 13, 2023?

ix. Is the applicant entitled to $2,468.90 for chiropractic services, proposed by Doctors Health Group Inc. in a plan dated April 22, 2024?

x. Is the applicant entitled to $2,740.14 for chiropractic services, proposed by Doctors Health Group Inc. in a plan dated March 15, 2024?

xi. Is the applicant entitled to $3,656.20 for chiropractic services, proposed by Doctors Health Group Inc. in a plan dated June 1, 2024?

xii. Is the applicant entitled to $2,273.72 for chiropractic services, proposed by Doctors Health Group Inc. in a plan dated July 23, 2024?

xiii. Is the applicant entitled to $2,748.92 for chiropractic services, proposed by Doctors Health Group Inc. in a plan dated October 15, 2024?

xiv. Is the applicant entitled to $750.00 for orthopaedic services, submitted by Doctors Health Group Inc. in an OCF-21 dated October 22, 2024?

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

xvi. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

3Issue xiv above is referred to as an OCF-18 in the Case Conference Report and Order (“CCRO”), however, this is an OCF-21. As such, I have referred to it as an OCF-21 in the issues in dispute.

RESULT

4The applicant is not entitled to a NEB of $185.00 per week from September 2, 2023 to April 30, 2024.

5The applicant is not entitled to the disputed treatment plans or the OCF-21.

6As none of the benefits in dispute are owing, the applicant is not entitled to interest.

7The respondent is not liable to pay an award.

ANALYSIS

Is the applicant entitled to a NEB in the amount of $185.00 from September 2, 2023 to April 30, 2024?

8I find that the applicant is not entitled to a NEB in the amount of $185.00 per week for the period of September 2, 2023 to April 30, 2024.

9Section 12(1) 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 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.

10The applicant submits she was unemployed at the time of the accident; she was independent in all personal care, housekeeping, home maintenance, meal preparation, and caregiving activities. The applicant relies on the section 25 independent psychological examination report dated February 8, 2024, prepared by Dr. Mohammad Nikkhou, psychologist, the Disability Certificate (OCF-3) dated June 1, 2023, prepared by Dr. Niousha Golhassani, chiropractor.

11The applicant also relies on parts of the section 44 psychology examination dated August 3, 2023, prepared by Dr. Charlotte Gooden, psychologist, and parts of the section 44 occupational therapy assessment dated August 3, 2023, prepared by Mr. Rahim Kassam, occupational therapist.

12The applicant summarizes her accident-related impairments as soft tissue injuries including sprain and strain of the right shoulder, arm, neck, lower back, hip, and right leg with numbness, as well as moderate depression, anxiety, fatigue, and sleep issues.

13Based on the evidence, including the applicant’s submissions, the section 25 report, and the OCF-3, I find that the applicant’s pre-accident activities that she ordinarily engaged in were her personal care, childcare, and she shares responsibilities with her spouse for household activities such as meal preparation, cooking, cleaning, and laundry.

14Turning to the applicant’s accident-related impairments and the question of her complete inability, I find that the applicant has not met her onus to demonstrate that she has a complete inability to carry on a normal life and her impairments do not prevent her from substantially engaging in her pre-accident activities.

15The OCF-3 dated June 1, 2023 prepared by Dr. Golhassani notes the applicant suffers a complete inability to carry on a normal life, she is unable to work, lift, carry or reach, she suffers a complete inability to engage in caregiving, and a substantial inability to perform housekeeping and home maintenance services. The applicant’s anticipated recovery time is indicated as more than 12 weeks. However, an OCF-3 on its own is insufficient evidence to establish entitlement to a substantive benefit and I find the applicant’s self-reporting in the section 25 psychological examination, discussed below, is not supportive of her claim.

16Dr. Nikkhou’s section 25 psychological examination report notes the applicant prepares meals, takes care of her toddler for most of the day, does light chores such as cleaning, grocery shopping, and she tends to forget things at times. Dr. Nikkhou diagnosed the applicant with adjustment-like disorder, sleep disturbances, and anxiety. I find Dr. Nikkhou’s report is not supportive of the applicant’s claim that she suffers a complete inability to carry on a normal life because it notes the applicant can still engage in her pre-accident activities such as meal preparation, care for her toddler, and light chores including housekeeping and grocery shopping.

17The respondent submits the applicant has not demonstrated that her injuries prevent her from substantially engaging in her pre-accident activities. The respondent relies on the section 44 psychological assessment conducted by Dr. Charlotte Gooden, psychologist, the section 44 occupational therapy assessment conducted by Mr. Rahim Kassam, occupational therapist, and the section 44 physiatry assessment and subsequent paper review dated August 3, 2023, prepared by Dr. Lori Feigelson, physiatrist.

18Although the applicant’s section 25 reports indicate she has limited ability to perform household tasks, I find this is inconsistent with what she reported to the section 44 assessors, specifically, that continues with all of her pre-accident activities, including home maintenance, household chores, meal preparation, cooking, and caring for her toddler with the ongoing support of her spouse.

19The section 44 report prepared by Dr. Feigelson notes the applicant does not suffer a complete inability to carry on a normal life and she continues to engage in her pre-existing activities of daily living that she was engaged in before the accident. While the section 44 report prepared by Dr. Gooden notes the applicant suffers from adjustment disorder with mixed anxiety and depressed mood, I am not persuaded her symptoms overall are not of a magnitude or severity that results in a complete inability to carry on a normal life. In fact, Dr. Gooden and Dr. Feigelson note the applicant is independent in her self-care including bathing, dressing and caring for her toddler, cooking, laundry and housecleaning as a shared responsibility, as well as maintaining her self-grooming and household chores.

20I do not find the section 44 occupational therapy assessment is supportive of the applicant’s position because the assessment states that the applicant experiences pain, however, the applicant does not have a functional or physical limitation or restriction, and post-accident she maintains personal grooming, household chores, and care for her toddler at a reduced frequency.

21In sum, the evidence overall indicates that the applicant continued to substantially engage with her pre-accident activities such as her self-care, caring for her toddler with assistance from her spouse, and her shared household responsibilities.

22Therefore, I find that the applicant has not demonstrated that her accident-related injuries prevent her from completing substantially all of her pre-accident activities. Also, the applicant has not identified the activities that she values most that would attract more weight under the Heath test.

23Accordingly, 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 September 2, 2023 to April 30, 2024.

Chiropractic services (OCF-18s)

24I find the applicant is not entitled to the disputed chiropractic treatment plans.

25To 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.

26The disputed chiropractic treatment plans proposed by Doctors Health Group Inc. include:

i. September 29, 2022, in the amount of $2,096.25;

ii. February 13, 2023, in the amount of $2,315.30;

iii. April 17, 2023, in the amount of $2,456.20;

iv. May 16, 2023, in the amount of $2,524.05;

v. October 26, 2023, in the amount of $2,227.03;

vi. October 18, 2023, in the amount of $1,301.79;

vii. December 13, 2023, in the amount of $2,922.68;

viii. April 22, 2024, in the amount of $2,468.90;

ix. March 15, 2024, in the amount of $2,740.14;

x. June 1, 2024, in the amount of $3,656.20;

xi. July 23, 2024, in the amount of $2,273.72;

xii. October 15, 2024, in the amount of $2,748.92.

27The applicant generally submits the treatment plans are reasonable and necessary as a result of her ongoing accident-related impairments. The applicant submits that the treatment goals of these plans include pain reduction, increased range of motion, strength improvement, return to normal activities and modified work.

28The applicant did not specifically address why the disputed chiropractic treatment plans are reasonable and necessary and relies on the OCF-18s and the CNRs of Dr. Golhassani of Doctor’s Health Group Inc, also the provider of the chiropractic treatment.

29The applicant directs the Tribunal to approximately 430 pages of chiropractic treatment notes that are mostly indicative of the applicant’s attendance, including the OCF-18s in dispute. I was not directed to specific entries in the CNRs of the family doctor or another independent medical professional recommending chiropractic treatment for her accident-related impairments. Also, it is well-established by this Tribunal that OCF-18s on their own are not sufficient to demonstrate entitlement and I was not directed to contemporaneous medical reports that support the reasonableness or necessity for the disputed chiropractic treatment plans.

30The respondent submits the disputed chiropractic treatment plans are not reasonable and necessary and the applicant has not met her onus to demonstrate entitlement to these plans. The respondent relies on the section 44 physiatry examination dated April 12, 2024 prepared by Dr. Yong-Kyong (Michael) Ko, physiatrist. Dr. Ko conducted a physical examination, reviewed the applicant’s medical history, which revealed functional range of motion in the cervical spine, left and right shoulders, and lumbar spine, albeit limited in some instances due to pain, and full range of in the bilateral hips, and knees. Further, Dr. Ko’s report concluded that the applicant sustained sprain/strain of the right cervical paraspinal muscle and right trapezius, she does not have any functional limitations, and that she has reached maximal medical recovery.

31I find the applicant has not met her onus to establish that the disputed chiropractic treatment plans are reasonable and necessary. I was not directed to evidence that establishes the specific treatment plans are reasonable and necessary, how the goals would be met to a reasonable degree, and that the overall cost of achieving them are reasonable.

32I find on a balance of probabilities that the chiropractic treatment plans dated September 29, 2022, February 13, 2023, April 17, 2023, May 16, 2023, October 26, 2023, October 18, 2023, December 13, 2023, April 22, 2024, March 15, 2024, June 1, 2024, July 23, 2024, October 15, 2024, October 22, 2024 are not reasonable and necessary.

Orthopaedic services (OCF-21)

33I find the applicant is not entitled to the orthopaedic services in an OCF-21 dated October 22, 2024, in the amount of $750.00.

34The OCF-21, signed by Dr. Golhassani, chiropractor, states the applicant’s injuries include sprain and strain of cervical, thoracic, lumbar spine, hip, shoulder and sacroiliac joint, outlines a cost of $200.00 for completion of OCF-18, and $500.00 for custom made orthotics, totalling $750.00.

35The applicant submits that she is unable to work, perform household duties, and provide caregiving for her toddler. The applicant relies on the CNRs of Doctor’s Health Group Inc.; however, I see no support of the OCF-21, or a recommendation for orthotics as a result of her accident-related injuries in these CNRs.

36The respondent submits the applicant has not met her onus and she has not provided any medical evidence in support of orthotics.

37I find that the applicant has not met her onus to prove on a balance of probabilities that she is entitled to payment of the OCF-21.

Interest

38Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As I have determined there are no overdue benefits, interest is not payable.

Award

39The applicant sought an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

40The applicant submits the respondent is ignoring the medical evidence and is unreasonably withholding or delaying payment for treatment. The applicant relies on Liberty Mutual Insurance Company v. Persofsky, 2003 ONFSCDRS 9. However, the applicant made no submissions regarding the specifics of the insurer’s conduct, the potential harm directed at the insured, the need for deterrence, the advantage wrongfully gained by the insurer, or any other penalties or sanctions that could be imposed due to misconduct.

41The respondent submits that treatment has not been unreasonably withheld or delayed, and its decisions are based on the available medical evidence including the insurer’s examinations.

42Based on the applicant’s submissions and because no benefits were withheld or delayed, I am not persuaded that the insurer’s conduct in this case was “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”

43I find the applicant has not demonstrated that an award is appropriate. As no benefits have been unreasonably withheld or delayed, no award is payable.

ORDER

44For the reasons above, it is ordered that;

i. The applicant is not entitled to a NEB of $185.00 per week from September 2, 2023 to April 30, 2024.

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

iii. There are no overdue benefits, therefore the applicant is not entitled to interest.

iv. The respondent is not liable to pay an award under section 10 of Regulation 664 because no payments were unreasonably withheld or delayed.

45The application is dismissed.