Awadalla v. Intact Insurance Company, 2021 CanLII 93245

Citation: Awadalla v. Intact Insurance Company, 2021 CanLII 93245

Release date: 10/04/2021

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:

Hanna Awadalla

Applicant

and

Intact Insurance Company

Respondent

AMENDED DECISION AND ORDER

ADJUDICATOR: Cezary Paluch

APPEARANCES:

For the Applicant: Hanna Awadalla, Applicant Mireille Dahab, Counsel Avneet Kaur, Student at law

For the Respondent: Intact Insurance Company, Representative Oliver Gorman-Asal, Counsel

Court Reporter: Bruce Potter

HEARD by Videoconference: June 28, 29, 30, and July 8, 2021

OVERVIEW

1The applicant was involved in an automobile accident on August 4, 2017 when he was T-boned by another vehicle delivering a package. He did not require immediate medical attention and was driven home by his wife from the accident. A week later, he went to see his family doctor due to pain in his left shoulder, right ankle, back and neck. At the time of the accident, he was 49 years old and worked as an Uber driver. He attempted to return to work January to March 2018 but ultimately was not able to work and claims he suffered both physical and psychological injuries, including chronic pain, that prevented him from returning to any type of work.

2The respondent, Intact Insurance Company (“Intact”), paid the applicant income replacement benefits (“IRBs”) up to May 20, 2020. It terminated the IRBs on the basis that the applicant could return to some form of suitable employment, based on the findings of various s. 44 insurer’s examination (“IE”) reports. The applicant submits that due to his limited education, lack of any other specific skills or experience, mental health impairments, including chronic pain, and significant physical restrictions from the accident, he cannot return to any job duties.

3As a result, the applicant appealed Intact’s decision and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), seeking entitlement to the IRBs pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule'').¹ He also requested an award and interest. Costs were added at the hearing. The matter proceeded to a videoconference hearing after completion of a case conference and several motions.

Preliminary Issues

Counsel appearing for non-party

4On the first day of the hearing, Eric Grossman, lawyer, called in on behalf of a non-party - Seiden Health who conducted the s. 44 IE assessments - with respect to the applicant’s motion that Seiden Health did not comply with a summons and/or order for productions. Mr. Grossman submitted that it was his understanding that Seiden Health had complied with the order. It was not clear which individual at Seiden Health this apparent summons was served on and if it was properly served. There was also some indication it may have been served by fax. The applicant’s own motion materials (see para. 6 Supplementary Schedule A dated June 21, 2021) requested an order to validate service of a summons via fax as opposed to personal service.² Perhaps even more importantly, any contempt proceedings related to a non-attendance must be stated to the Divisional Court and the Tribunal does not have jurisdiction to force compliance with a summons. In any case, after a break, the applicant withdrew the contempt issue. No order was made against Seiden Health and their participation was not necessary.

Interpreter

5The applicant’s first language is Arabic, and he is relatively fluent in English. However, at the hearing, counsel requested an interpreter and the applicant started his testimony initially with the assistance of an Arabic interpreter. However, part way through issues arose with respect to dialect, and applicant’s counsel requested that the applicant testify in English. The applicant also made it clear that his preference was to proceed in the English language. The respondent’s counsel initially raised some concerns but eventually was satisfied to proceed without an interpreter. As a result, I found that the applicant clearly and unequivocal waived his right to an interpreter and we proceeded without one for the balance of the hearing. The applicant raised no further concerns in proceeding in English. I also directed applicant’s counsel to repeat the initial evidence the applicant had provided with an interpreter.

Various Motions

6A few days before the start of this hearing, the applicant filed three motions (two in one day) requesting numerous items of relief including seeking “to bar the respondent from calling any witnesses and/or relying on witness reports” and “an order for a resumption of the case conference before the hearing adjudicator to discuss the preliminary issue of witnesses prior to the commencement of the hearing.” ³

7In reply submissions dated June 25, 2021, the respondent requested their own relief including quashing the summonses concerning the adjustors which were issued approximately four weeks prior. However, at the start of the hearing, with the cooperation of both counsel, the parties were able to simplify and streamline their various requests and asked that the Tribunal rule only on the following matters orally, and proceeded with the hearing. With respect to the applicant’s submissions that the respondent was in contempt related to allegations that the respondent has not complied with Tribunal orders and rules and/or summons, I understood that this was withdrawn, and the applicant was directed to address any related issues by way of an adverse inference in final submissions, and I address this at the end of this decision.

Applicant’s Requests

1) To exclude respondent’s Supplementary Document Brief

8The applicant requested that the respondent’s Supplementary Document Brief which contained Facebook photos/Google searches of the applicant, records from the Ontario Motor Vehicle Industry Counsel, as well as a corporate search of a business be excluded as it was served late. The respondent submits that the motion to exclude this supplementary brief was done in bad faith and in a vexatious manner.

9The Tribunal Order released on February 10, 2021 (the “Case Conference Order”), directed the parties to exchange all documentation that they intend to rely on at the hearing, by April 28, 2021. However, the applicant only received these materials on June 21, 2021, a mere two business days before the start of the hearing and almost 2 months past the deadline.

10After considering the parties’ submissions, I excluded the supplementary document brief as they were received past the deadline, subject to the respondent being able to be question the applicant about this information.

2) Request to exclude s. 44 reports of Dr. A. Biswas, Angela Nicastro, Dr. R. Lubbers and Dr. F. Abuzgaya

11The applicant requested that certain s. 44 IE reports⁴ be excluded because the respondent had not produced the assessor’s clinical notes and records (CNRs). The Case Conference Order required the respondent to produce the CNRs by April 28, 2021. Moreover the motion order dated June 2, 2021, directed the respondent to complete the productions within 7 days of issuance of the Order or alternatively, the Tribunal will issue a summons to the third party Seiden Health to release the documents pursuant to Section 12 (1)(b) of the Statutory Powers Procedure Act.

12More importantly, exclusion of medical reports is a remedy of last resort and should be done sparingly only in the clearest of cases, where there is no alternative to prevent prejudice to a party. Here, as per the motion order, the Tribunal afforded the applicant an alternative remedy to issue a summons to the assessors at Seiden Health if the documents were not produced. As well, the respondent’s counsel also explained that they requested the CNRs from the assessors and were advised that they do not have any notes from the assessments conducted and all information has already been provided. I note that the letter from the respondent to the applicant dated June 18, 2021, confirms that correspondence from Seiden Health dated June 14, 2021 was forwarded to the applicant on June 17, 2021, which enclosed 15 items including draft reports, and that Seiden Health advised that the CNR request was forwarded to both Dr. Ralph Lubbers and Dr. Arpita Biswas. The letter dated June 24, 2021 from respondent’s to applicant’s counsel enclosed the CNR’s of Dr. Biswas.

13As a result, I accepted the respondent’s explanation and declined the applicant’s request, but allowed the applicant to question any assessor at the hearing whether they prepared any CNRs.

3) Request by applicant to conduct final submissions in writing and for costs

14Paragraph 15 (iii) of the Case Conference Order instructed the parties that each be given one half hour for closing submissions. I directed the parties to discuss how best to present final submissions in assisting the Tribunal, and that I would revisit this issue at the completion of the case if the parties could not agree on the format. After some further discussions nearer the end of the hearing, the parties agreed to conduct final submissions orally on a date that was agreed to, and the matter proceeded on that basis.

15Rule 19.2 of the Common Rules of Practice and Procedure (Licence Appeal Tribunal, Animal Care Review Board, Fire Safety Commission) October 2, 2017, as amended (the “Rules”) provides that a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released. A request for costs was raised by the applicant during the hearing. Costs were added as an issue and the parties were directed to address costs in their final submissions.

4) Dr. L. Davidson’s Rebuttal report dated June 23, 2021

16The applicant requested that I admit Dr. Davidson’s addendum report dated June 23, 2021. This was prepared a few days before the hearing. The applicant’s counsel explained that the report was prepared to respond to the log notes which they received late. At the hearing the respondent’s counsel advised that he had not received this addendum report which the applicant’s counsel forwarded by email. I declined to allow the report to be admitted because it was served significantly past the deadline of April 28, 2021 and the respondent’s counsel had not received it, nor had an opportunity to have their witnesses review it. To rectify any prejudice to the applicant, and recognizing Dr. Davidson was scheduled to testify, I directed the applicant that they may introduce this additional information through viva voce evidence, and the respondent may cross examine the witness.

Respondent’s Requests

5) Quash three summonses

17The respondent submits that the summonses for the three adjustors: Norman Bertrand, Kelly Ketner and Henry Gonzalez should be quashed because the applicant failed to properly serve and complete the summonses to the witnesses, and his attempt to summons three adjustors without raising any cogent allegations is an abuse of process and a waste of Tribunal time and resources.

18Section 12(1)(b) of the Statutory Powers and Procedure Act speaks to the issuance of a summons to produce evidence relevant to the subject-matter of the proceeding and admissible at the hearing. Here, the issues in dispute are framed as income replacement benefits, interest, and an award, pursuant to Regulation 664 and costs. Given the issues in dispute include an award, the adjusters assigned to the file will have unique knowledge of the continued assessment of the file and the reasons for the denial of the IRB. Coupled with this, the applicant recently received the adjuster log notes from the respondent and could question the adjusters about the various entries. I found that the evidence from the adjusters may be material or arguably relevant to the issues in dispute, particularly regarding the claim for an award, and I did not view this merely as a fishing expedition. I found the applicant should not be penalized because there were multiple adjusters assigned to the file, and by calling three adjusters, this amounted to an abuse of process and a waste of resources. Therefore, having reviewed the parties’ submissions, I denied the respondent’s motion to quash the summonses to the three adjusters and encouraged the parties to cooperate and discuss which of the adjusters would be called. The applicant agreed to call one adjuster only.

6) Immediate provision of documents

19The respondent also sought an Order for the immediate provision of the following documents, which were already ordered to be produced by the Case Conference Order: (a) updated CNRs of Dr. Kodsi from April 2, 2020 to date and ongoing; (b) updated Decoded OHIP Summary from January 25, 2020 to date and ongoing; (c) updated CNR’s of Dr. Timothy Leroux (UHN Arthritis Program) to date and ongoing; (d) updated CPP File (if any); and (e) Income Tax Returns from 2018 to date and ongoing. The applicant explained they have made best efforts to provide this documentation and/or certain documents (i.e. tax returns post 2018) were simply not available as they have never been filed. I accepted the applicant’s explanation and directed the respondent to make any further submissions regarding any alleged non-compliance with a production order in their submissions.

7) Exclude the applicant’s hearing brief

20The respondent submitted that the applicant’s Document Brief was served on June 4, 2021, a full week following the ordered deadline of May 28, 2021. On June 21, 2021, the respondent wrote to the applicant advising that it would be objecting to the applicant’s Document Brief as a result of the late service. The respondent’s request was denied. The brief was served only three business days late and three weeks before the start of the hearing, and I did not find any prejudice to the respondent as all the documents contained in the brief were already in the respondent’s possession.

ISSUES

21The disputed claims in this hearing are:

1. Is the applicant entitled to IRBs in the amount of $278.00 per week from May 20, 2020⁵ to date and ongoing?
2. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
3. Is the applicant entitled to costs?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

22The applicant is entitled to IRBs in the amount of $200.00 per week from May 20, 2020 to date and ongoing plus interest, in accordance with s. 51 of the Schedule.

23The applicant is not entitled to an award under Regulation 664 or to his costs of the proceeding.

ISSUE 1: Entitlement to IRBs 104 Weeks after the Accident

LAW

24The insurer’s obligation to pay IRBs, eligibility criteria and the method of calculating benefit amounts are set out in ss. 4-11of the Schedule. The test for entitlement to a post-104-week IRB is set out in section 6(2)(b), which states:

The insurer is not required to pay an income replacement benefit after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience [emphasis added].

This is referred to as the “complete inability test” or the “post-104 week test.”

25The parties agreed at the hearing that the only issue in dispute is the post-104 weeks entitlement to IRBs. Initially they also agreed that the quantum was $278.00 per week (as in the Case Conference Order) from May 20, 2020. However, later at the hearing, the respondent changed its position and maintained that $200.00 per week was the correct amount. That was the figure that respondent’s counsel also referred to in final submissions relying on their accounting report. As a result, I will also address quantum as well.

It is well accepted that the onus to prove entitlement and quantum rests with the applicant. Therefore, to be entitled to ongoing IRBs more than 104 weeks after the accident, the applicant must satisfy the post-104 week test by establishing on a balance of probabilities that he suffers a “complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience” as a result of the accident. For analytical purposes, the inquiry can be divided into three main parts:

i) causation; ii) complete inability to engage in any employment for which he is reasonably suited by education, training, or experience; and iii) quantum.

ANALYSIS

26A four-day videoconference hearing was conducted. The applicant and three witnesses testified. The respondent did not call any witnesses. The parties filed extensive document briefs. I have considered all of the evidence led during the hearing and only summarized what I found relevant to my determination below.

Causation

27The respondent conceded causation with respect to the applicant’s psychological injuries but not his physical injuries. In summary, I find that the applicant has established causation based on the evidence.

28The evidence shows that, before the accident, the applicant was psychologically healthy, was not diagnosed with any mental illness, and had documented problems with his cervical and lumbar spine including neck surgery in 2016 and lumbar surgery in 1996. He was also diagnosed with sleep apnea several years prior to the accident, was using a CPAP machine every night and had some previous chronic pain issues and numbness in last 3 digits of both hands. The note from Dr. L. Safinia of the Neuro-Diagnostic Centre Inc. dated January 2, 2020 is telling. Dr. Safinia (referred to by Dr. Kodsi) writes that the applicant underwent cervical spine surgery in 2016 and his symptoms regarding the numbness in his hands improved significantly after the surgery. However, one year later, after the accident, the numbness in his last 3 digits of both hands increased.

29As a result, the applicant was also clearly vulnerable as a result of his well documented pre-existing physical conditions which were aggravated by the accident. After the accident, he underwent left shoulder surgery (total shoulder arthroplasty under Dr. Leroux at Toronto Western Hospital) in September of 2019, and experienced decreased range of motion. This surgery appears to have been unsuccessful and his surgeon has referred him for a second opinion with consideration for revision surgery. He worked full-time 45-50 (some information has up to 60) hours as an Uber driver since about 2016.

30The medical evidence supports my finding that the applicant’s impairments were caused by the accident. It includes two Disability Certificates. The first dated October 23, 2017, about two months after the accident, completed by Talisha Kassam, physiotherapist, concluded the applicant suffered a complete inability to carry on a normal life, is substantially unable to perform the essential tasks of his employment and cannot return to work on modified hours because “patient has difficulties with activities of daily living, and sleeping, difficulty in engaging in social events and activities due to limitations with sitting, standing and walking.”⁶ The listed injuries were: whiplash with complaint of neck pains with neurological signs; sprain/strain of thoracic and lumbar spine; radiculopathy; rotator cuff/shoulder injury; ankle sprain and headaches/dizziness. The anticipated duration of the disability was 9-12 weeks. With respect to prior injuries, the physiotherapy noted that the applicant had “previous numbness left hand (ulnar distribution) and left lateral 4 digits of foot related to cervical neck and lumbar spine.”

31The second OCF-3 was completed by Jerome Wong, chiropractor, on June 28, 2018, about 11 months post accident, noting that the applicant can not return to his regular work due to his shoulder and lumbar spine injuries. Mr. Wong recommended an orthopaedic assessment to determine how best to manage the applicant’s rotator cuff tears and tendinopathy as well as signs of OA.

32Visit note by Family Physician, Dr. S. Kodsi dated August 16, 2017 (just over a week after the accident) identified complaints of neck and back pain and stiffness. Assessment was neck and back strain. The applicant was referred to the Toronto Chronic Disease Centre. A note from Dr. C. Godfrey of September 7, 2017 indicates numbness in the applicant’s left foot when he walks and right lower ankle. On examination, Dr. Godfrey found restricted movement in the cervical spine and at the glenohumeral joint due to osteoarthritic changes. There was some dropping of the anterior arches of the applicant’s left foot that was giving him pain and numbness and he required orthotics. Note by Dr. Kodsi dated July 5, 2018 indicated that the applicant would be off work due to medical reasons from July 5, 2018 until July 31, 2018. Note by Dr. Kodsi dated August 1, 2018 identified back pain and stiffness and numbness in his hands.

33Diagnostic imaging was conducted on the applicant’s left shoulder and left ankle on August 29, 2017 with indications related to pain. Ultrasound of the left shoulder on August 29, 2017 found mild biceps tenosynovitis and partial thickness tear of the supraspinatus tendon at the insertion. X-ray of the left shoulder revealed: “Left glenohumeral articulation shows moderate joint space loss inferiorly with moderate inferior osteophyte formation from the humeral head. Acromioclavicular joint shows minimal degenerative irregularity and hypertrophy. Greater tuberosity is mildly sclerotic and irregular.” Ultrasound of the right ankle on August 29, 2017 indicated mild tenosynovitis of the peroneus brevis tendon. X-ray of the right ankle noted minimal marginal osteophyte formation anteriorly from the tibial plafond and tiny plantar spur.

34The Orthopedic Assessment report of Dr. Tajedin Getahun dated June 11, 2019, diagnosed the applicant with myofascial strain of the cervical spine and lumbosacral spine and aggravation of pre-existing pathology, left shoulder adhesive capsulitis and right ankle sprain as a direct result of the accident. Dr. Getahun also noted in this report that the applicant reports symptoms of anxiety and intermittently depressed mood.

35In a second Orthopedic Assessment report of dated June 14, 2020, almost three years post accident, Dr. Getahun reassessed the applicant and diagnosed chronic injuries namely: chronic myofascial strain and aggravation of pre-existing pathologies, chronic myofascial strain of the lumbosacral spine and aggravation of pre-existing pathologies, left shoulder likely contusive injury/soft tissue injury and aggravation of pre-existing glenohumeral osteoarthritis. Dr. Getahun noted that the applicant underwent left shoulder arthroplasty and is currently awaiting an opinion with regards to revision surgery. Dr. Getahun also noted ongoing back and neck pain, left shoulder dysfunction and right ankle pain and that the applicant was placed on an antidepressant and described suicidal thoughts six months ago. The applicant continues to use Lyrica and Dilaudid for pain.

36The Mental and Behavioral Evaluation report dated July 13, 2020, Dr. Lara Davidson, psychologist, diagnosed the applicant with mental health issues including Major Depressive Disorder and Symptom Disorder with predominant pain and that the accident has contributed to a multitude of his psychological symptoms and impairments that preclude useful functioning for the applicant who is unable to manage his pre-accident engagement. Dr. Davidson indicated that the applicant’s current capacity to communicate and interact with others is significantly impaired since his accident explaining that this difficulty is multi-varied and includes factors such as his reduced ability to regulate his depressed mood, the chronic presence of his symptoms, poor concentration, lowered activity tolerance, and irritability.

37Similarly, the applicant’s Psychological Examination by Dr. Ralph Lubbers dated December 31, 2020 (done as part of the CAT determination) diagnosed Major Depressive Disorder, with anxious distress, moderate and Somatic Symptom Disorder with predominant pain. With respect to causation, Dr. Lubbers stated that the current diagnosed condition is considered to stem in part from involvement in the accident and that it is likely that at least elements of the current psychological presentation pre-existed the accident. Dr. Lubbers finding is based on a lengthy history of chronic pain and pre-accident documents referencing prescription of various analgesics, Lorazepam, and Paroxetine.

38The respondent’s own IE assessor, Dr. Arpita Biswas, psychologist, in a very detailed Psychological Assessment report dated September 3, 2019, indicated that the applicant was presenting with “significant symptoms of anxiety, depressed mood and pain preoccupation.” Dr. Biswas diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Somatic Symptom Disorder with predominant pain. Dr. Biswas concluded that the applicant’s current psychological symptoms appear to be directly related to the accident.

39Dr. Biswas also noted that the applicant’s prognosis was somewhat guarded because his symptoms of anxiety, depression and somatic preoccupation are temporary, but the recovery from those is also partly dependent on his recovery from his physical pain symptoms and whether he receives psychological help.

40The IE neurological examination of Dr. Brandon Kucher dated August 15, 2019, diagnosed a “concussion/mTBI”. Dr. Kucher noted that the applicant used a cane to ambulate when he came for his assessment. It is well accepted that a concussion is a mild traumatic brain injury that affects brain function.

41All of these diagnoses and symptoms mean that the applicant has had obvious emotional difficulty adapting to and coping with both his psychological and physical symptoms, including exacerbation of pain, since the accident. In addition to the exacerbation of pain affecting his spine, the applicant developed new physical injuries after the accident including both shoulders and right ankle pain. Prior to the accident, the applicant maintained paid employment, engaged in leisure activities such as fishing and attending church and spending time with his family, assisted with household chores, and led an active social life. Since the accident, his capacity to focus and follow through with meaningful tasks and activities has been affected by a combination of physical, emotional, and cognitive symptoms such as difficulty concentrating and memory problems.

42I note that Dr. Abuzgaya in his IE orthopedic assessment dated February 18, 2020 concluded that the applicant’s accident-related diagnoses were consistent with cervical/lumbar/right ankle sprain and left shoulder soft tissue injury, but his review of the MRI of his left shoulder of August 11, 2019 showing significant findings of osteoarthritis (fraying of the upper infraspinatus, a large posterior labral tear extending from the bicipital anchor to the inferior glenoid, severe glenohumeral osteoarthritis and moderate severity AC joint osteoarthritis), in his view, were not related to the accident. However, for reasons I discuss later, I preferred the orthopaedic findings of the applicant’s expert Dr. Getahun who found aggravation of the applicant’s pre-existing pathologies including his left shoulder and I do not accept Dr. Abuzgaya opinion regarding causation.

43In many cases as in this one, physical and mental symptoms often are intertwined. Indeed, Dr. Biswas stated in her testimony that “the mind and body are related” concluding that the applicant’s symptoms of anxiety, depression and somatic preoccupation are dependent on his recovery from his physical pain. Dr. Biswas further elaborated in her direct examination that if the applicant’s physical problems continue it might cause him more psychological issues and that’s why she recommended psychological treatment.

44Therefore, in my view, one can not simply bifurcate the applicant’s physical injuries from his psychological ones as the respondent seems to want to do by taking the position that they concede causation with respect to his psychological injuries but not his physical injuries. I agree with the doctors for both parties, that the applicant’s physical and psychological injuries are deeply intertwined, and as pain increases the applicant’s depression - his depression then increases his pain. Both the physical and psychological impairments need to be considered together as was recognized by Dr. Biswas, Dr. Dr. Getahun and Dr. Davidson.

45Therefore, based on the evidence reviewed above, I find that but for the motor vehicle accident the applicant would not be suffering from the physical and psychological impairments that cause the complaints he puts forward as the basis for his claim for the IRBs. While some of his physical injuries predate the accident, they were exacerbated by the accident and there is no doubt that his psychological injuries are serious, have not resolved and are also related to his physical symptoms.

46I now turn to the issue of whether, as a result of the accident, the applicant’s exacerbated physical injuries, new physical injuries, pain and psychological problems cause the applicant a “complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.”

Complete Inability

47Due to the psychological and physical impairments which are interconnected, including his ongoing pain issues, I find that the applicant meets the test for eligibility for an IRB post-104 weeks because he suffers a complete inability to work in any employment for which he is reasonably suited by education, training, or experience. Overall, I preferred the evidence of the applicant as I found it more complete, compelling, and comprehensive, and therefore gave it more weight than the respondent’s evidence. In my view, there is clear objective medical evidence supporting the applicant’s claim of a complete inability to work as defined in s.6(2)(b) of the Schedule.

Applicant’s Evidence

48The applicant started working as an Uber driver approximately three years prior to the accident in 2016 working 40-50 (at times up to 60) hours per week. The specific tasks of the position included sitting for prolonged periods of time and operating the vehicle. He would have to control the vehicle with turning the steering wheel, applying gas or break pedals and obeying street signs. Besides driving all day, his job required him to be alert and communicate effectively with customers. There was minimal lifting and carrying.

49Based on the Employer’s Confirmation Form (OCF-2), dated July 18, 2018, filled out by the applicant himself, he earned $73,113.22 for the period before the accident as a self-employed Uber driver. The essential tasks of his job (under Part 6 Employment Details) were left blank. No last day worked was indicated in Part 6 of the form. However, the date of employment is listed as ending on August 4, 2017 (same day as the accident). The evidence also was that the applicant returned to work part-time sometime in January of 2018 for about 20 to 25 hours per week until March 2018, but had to stop due to pain and has not returned since.

50At the hearing, the applicant testified that he is 54 years of age, was born in Egypt and came to Canada in 1991 at the age of 24. English is his second language. He testified that he was working as an Uber driver at the time of the accident and used to be an auto mechanic and operate his own garage, but that business closed. He testified that he has gained weight since the accident (240/235 lbs before vs 259 lbs. now). He now experiences constant pain, has difficulty sleeping and feels life is pointless. He described suicidal ideations, and even went as far as to go by railroad tracks by his house, but stopped himself when he started thinking about his daughter who is in school. He cannot work as an Uber driver because he can not sit for long periods, has constant headaches, can not tolerate talking to clients, he can not press the gas pedal because of the injury to his ankle and numbness in his toes. He has now started to experience pain in his right shoulder as overcompensation from his left shoulder problems and pain radiating down his leg. He indicated that he can only drive short distances and can not do anything for more than 5 minutes because his mind is no longer there, and has trouble remembering and focusing.

51I found the applicant’s testimony generally to be credible, reasonably consistent, and accurate. In cross examination, he explained that Hanna Auto Sales/Ontario corporation has been taken over by his son and he is not involved in the business and is not a manager or director or salesman. The lease on the premises has been cancelled. There was some tendency to stray from the questions and perhaps there was some difficulty with him being able to express himself in English, but his testimony was essentially consistent with the medical documentation, including what he reported to the other assessors. I observed that the applicant was trying to put forth his best effort in the examination in chief which lasted several hours, but he often became withdrawn and frustrated, stood up several times, took breaks and became very emotional and started to break down at times during his testimony, especially toward the end. However, throughout, he was pleasant, courteous, and respectful.

52I also found that the self-reporting by the applicant and his testimony was consistent with the medical evidence. I noted that Dr. Biswas did not find any significant inconsistencies between her findings in her formal psychometric testing and her informal clinical observations of the applicant. Dr. Biswas stated in her testimony that although there was some over exaggeration, she did not interpret this as malingering.

53Similarly, Dr. Davidson who completed a wide range of psychometric testing as part of her July 13, 2020 report, concluded that the results were not suggestive of malingering or feigning. For example, the Pain Patient Profile (P3) designed to detect random responding and magnification of symptoms, was below the recommended cut-off, indicating a valid profile. As well, the Miller Forensic Assessment of Symptoms Test (M-FAST) designed to provide information regarding the probability that an individual is feigning a psychiatric illness, revealed that neither the applicant’s overall score nor his scores on the individual scales were suggestive of malingered psychopathology.

54In support of his claim for a post-104 week IRBs, the applicant relied on the orthopaedic report of Dr. Getahun dated September 25, 2019, that concluded as a result of his accident-related injuries and resultant impairments, that the applicant suffers a complete inability to engage in any suitable form of employment taking into consideration his education, training, and past experience. The main reason for his finding was that the applicant was unable to tolerate the required sitting or perform the required control of a vehicle with his left shoulder dysfunction, or adequately control the pedals with his right ankle dysfunction.

55Dr. Getahun noted in his report that the applicant’s back pain radiates down his left leg and limits his sitting, standing, and walking. He continues to have restricted range of motion and weakness. His right ankle symptoms have endured with restricted range of motion, dorsiflexion to 5 and plantar flexion to 30. He had normal subtalar range of motion. By contrast, the left ankle demonstrated dorsiflexion to 10 and plantar flexion to 45. He describes occasional instability and has been ambulating using a cane related to his right ankle issues. His neck has gotten worse. Dr. Getahun also found that the range of motion was not only affected by pain but also instability apprehension.

56In his testimony, Dr. Getahun further elaborated that the applicant’s physical injuries were aggravated by the accident including his left shoulder which is unstable and also affects his mobility. He described that sensation that the applicant feels that his shoulder will pop out. He commented that the applicant has impaired gait. He concludes that from a physical standpoint, the applicant will not make a desirable or competitive employee. Even with accommodations he would not be able to sit or walk for any long period of time, and is not capable of doing any job consistently. Dr. Getahun commented in detail that he conducted both passive (the assessors assist the arm) and active (without any assistance) range of motion tests regarding the upper extremities/shoulder. Dr. Getahun found that his right shoulder demonstrated no specific areas of tenderness and range of motion within normal limits with flexion to 180, external rotation to 90, and internal rotation to 70. The left shoulder demonstrated a 15 cm deltopectoral scar. He had restricted active range of motion with flexion to 80, extension to 20, external rotation to 40, internal rotation to 60, abduction to 70, and adduction to 30. There appeared to be apprehension and anterior instability of the shoulder. In contrast, Dr. Abuzgaya only completed the passive range of motion tests on the shoulder.

57Dr. Getahun testified at the hearing in a clear and straightforward manner and explained his methodology. He maintained his opinion that the applicant is essentially not employable, because no one will hire him because he will not be a reliable worker and be able to perform basic tasks of employment. In cross examination and final submissions, the respondent attempted to challenge Dr. Getahun’s opinion because apparently, he did not cite the precise test in his report, and I should assign his report no weight. I did not read the report that way as the entire paragraphs on page 13 of his report must read in context. Indeed, the important paragraphs are highlighted by the heading “Post 104 Income Replacement Benefits”. Also, Dr. Getahun explained that the way he structured his report is that he initially refers to the pre 104 test in the body of his report (i.e. the substantial inability test) and then transitions to the post 104 test (i.e. the complete inability test). Thus, I find that Dr. Getahun did address the correct post 104 test.

58Overall, I found Dr. Getahun’s report and testimony to be thorough and persuasive because he considered the applicant’s physical injuries in conjunction with his psychological impairments, including Major Depressive Disorder and chronic pain in arriving at his opinion regarding his employability. He also conducted a wide range of physical testing, including active and passive range of tests. His testimony at the hearing was essentially unchallenged. No witnesses were called by the respondent at the hearing to rebut Dr. Getahun’s findings.

59The applicant also relies on corroborating evidence from other medical practitioners, including Dr. L. Davidson, psychologist, who conclude in her Mental and Behavioural Addendum Report dated November 20, 2020, that from a psychological perspective, the applicant suffers from a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience. As support, Dr. Davidson referred to the Occupational Therapy assessment dated June 26, 2020 where Ali Habash, OT, conducted functional testing over two days, that supported an inability for competitive employment, including the applicant struggling greatly with even seemingly simple tasks (brooming, mopping, washing dishes by hand) presented. Dr. Davidson also mentioned that the applicant thought seriously about killing himself by driving in front of a train in February 2020.

60Dr. Davidson thoroughly summarized the practical challenges that the applicant would face in trying to enter any work environment. Specifically that the synergistic impact of his psychological symptoms including depressed mood, reduced interest and pleasure, diminished motivation, feelings of worthlessness/uselessness, reduced confidence, feelings of hopelessness, irritability, worries/anxiety, somatic focus, somatic anxiety, fear of reinjury, and kinesiophobic tendencies would likely interfere substantially with the applicant’s ability to consistently and effectively manage the requirements of any competitive employment, including regular attendance, making decisions, maintaining attention and concentration for extended periods, performing activities within a schedule, persisting, performing at a consistent pace, and managing problems/conflict.

61Dr. L. Davidson was called to testify at the hearing and noted that both she and Dr. Biswas diagnosed Somatic Symptoms Disorder with predominant pain. She explained that she did several tests with validity scales and the applicant performed well with no symptom exaggeration. She explained that sleep can impact function and worsen depression and pain. When she was asked how pain and cognitive functioning impacts employment, she replied that the applicant is pain focussed and withdraws, as opposed to persisting with a task. She acknowledged that the applicant may be better at sedentary tasks, and even with modified hours and regardless of the position, he is still not capable of working regular work hours. With respect to the applicant’s prognosis to return to work, Dr. Davidson recognizing that it is now three years post accident, and the longer someone is off work the harder it is to return, she did not anticipate improvement in the future.

62I found the reports and testimony of Dr. Davidson to be particularly persuasive. Dr. Davidson conducted two thorough assessments⁷ that included psychological testing, and an exhaustive review of numerous other relevant records and reports including consideration of functional data. Her testimony was essentially unchallenged in cross examination. Again, no witness was called by the respondent to challenge Dr. Davidson findings.

63For completion, although Dr. Biswas, also a psychologist (who was called by the applicant) did come to a different conclusion regarding the post 104 test her assessment was done in August 2019 (report dated September 2019). In contrast, Dr. Davidson assessed the applicant for the IRBs about a year later in November 2020. Indeed, in her testimony, this issue was addressed, and Dr. Biswas explained that the possible difference in the divergent opinions may be due to some deterioration because psychological symptoms can change quite quickly. During the cross examination, when Dr. Biswas was referred to a June 2020 OT report referencing the applicant’s outburst and memory problems, Dr. Biswas commented that this sounded serious and she neither saw these indicators when she conducted her assessment, nor that level of severity, but there may have been some deterioration. As a result, I also found Dr. Davidson’s more up to date assessment more consistent with the overall evidence that was presented at the hearing.

Respondent’s Evidence

64The respondent’s denial of the applicant’s entitlement to the IRBs was based on an Orthopaedic Assessment by Dr. Fathi Abuzgaya on July 29, 2019, and February 18, 2020, Neurology Assessment by Dr. Brandon Matthew Kucher on August 15, 2019, Psychology Assessment by Dr. Arpita Biswas on August 13, 2019, Vocational Assessment with Transferable Skills Analysis by Ms. Angela Nicastro on August 6, 2019 and Labour Market Survey by Ms. Angela Nicastro on August 6, 2019, which were part of a multi-disciplinary assessment.

65The Executive Summary dated September 3, 2019 prepared by Katie McCool, highlights the findings of the various assessors. One notable finding is that Dr. Abuzgaya, the orthopedic assessor, was unable to comment (at least at that time) on whether the applicant’s accident related impairment resulted in a complete inability to engage in any employment or self-employment that he would otherwise be suited for by means of education, training, or experience pending review of a recent left shoulder MRI and notes from his treating orthopaedic surgeon.

66To summarize, Dr. Fathi Abuzgaya, Orthopaedic Surgeon, conducted several assessments including Addendum Reports, dated October 18, 2019 and December 30, 2019. With respect to the post 104 issue, his Orthopaedic Evaluation report dated February 18, 2020 concluded that the applicant does not suffer a complete inability to engage in any employment for which he is suited as a result of the accident.

67I put limited weight on Dr. Abuzgaya’s conclusions as far as the post 104 test. Primarily, his report is not consistent with the overall evidence presented and his report was not subject to cross examination. For example, during Dr. Abuzgaya’s assessment, the applicant complained of pain in his neck, left shoulder, low back, and right ankle which he said worsened (rating it as an 8/10). Yet, Dr. Abuzgaya concludes that the prognosis for recovery is good, and does not really consider the applicant’s complaints, or if any deterioration had taken place since the accident, or if his ankle injury means he can no longer operate a car for any extended period of time, or consider whether the applicant’s pre-existing conditions could have been aggravated. He also did not consider the role and prominence of pain in this case, and the numbness in the applicant’s hands which are well documented and impact all aspects of the applicant’s life, including his ability to function in the workplace.

68In addition, Dr. Abuzgaya only tested passive range of motion for the applicant’s shoulder. This means the applicant’s shoulder is moved by the assessor to stretch the muscles. Active range of motion, on the other hand, refers to the applicant moving his shoulder on his own. Again, in contrast, Dr. Getahun did both tests.

69I also noted that in his initial orthopaedic assessment report of September 3, 2019, Dr. Abuzgaya stated that he was unable to comment on the applicant’s post-104 IRBs because he had to review the recent left shoulder MRI, as well as consultation notes from his treating orthopaedic surgeon before providing his opinion. In turn, when the results were provided, as part of his new assessment, he was still unable to assess the applicant’s shoulder explaining, that similar to the findings in last examination, the applicant would not allow movement of his left shoulder due to apprehension of increased pain. Despite all of the obvious challenges, Dr. Abuzgaya concludes that the applicant had functional range of motion of his cervical spine, lumbar spine, and ankles.

70Finally, Dr. Abuzgaya did not testify even though he was summonsed by both parties as I understand. Apparently, he was out of the country. This hearing was conducted by videoconference and witnesses were able to call in from different locations. At the end of the applicant’s case, I asked respondent’s counsel if he wished to adjourn to perhaps have some of his witnesses attend on another day if it was more convenient, but he declined. There were also submissions from the applicant that Dr. Abuzgaya did not provide his CNRs.

71Granted, there is no rule that a party must call a witness. Dr. Abuzgaya was a material witness who was summonsed. He conducted a myriad of assessments, addressed the post 104 issue, and came to a considerably divergent opinion compared to the applicant’s orthopaedic expert, including regarding causation. Yet, he was not able to testify to explain his findings. His report was therefore not subject to cross examination, and this ultimately goes to weight to be given to his reports.

72In contrast, Dr. Biswas testified and was a credible and a helpful impartial expert witness. She conducted an exhaustive 3 hour and 45 minutes in person assessment, and drafted a 23-page detailed and very thorough report. Dr. Biswas concluded that although the applicant suffers from psychological impairments, they are not of a magnitude to cause a complete inability to engage in any employment or self-employment that he would otherwise be suited for by means of education, training, or experience. She conceded that the applicant’s current psychological symptoms were directly related to the accident and his prognosis was somewhat guarded. When testifying Dr. Biswas explained things in plain and easy to understand language commenting that just because someone has psychological barriers does not mean they can not work. She stated that the applicant was presenting with significant symptoms of anxiety, depressed mood, and pain preoccupation, but until now, he has not received any psychological counselling sessions.

73Although Dr. Biswas concluded that the applicant did not meet the post 104 test, she explained that recovery from his psychological issues is partly dependent on his recovery from his physical pain issues, and also partially dependent on whether he receives some psychological help. For that reason, Dr. Biswas could not estimate the duration of his psychological impairments. Understandably, she did not conclude that he had reached maximum medical recovery.

74Extrapolating this logic because the applicant has not been able to recover from his physical pain and his conditions have deteriorated, he could not possibly have recovered from his psychological problems. It was unclear if the applicant completed the approximately 12 sessions of psychological treatment to teach him coping skills to deal with his anxiety, depression, and somatic preoccupation that Dr. Biswas recommended. It appeared that he had not. Again, in Dr. Biswas’ opinion, this was essential to his recovery.

75Nevertheless, for the reasons already mentioned, I preferred Dr. Davidson’s conclusion, and found that the applicant deteriorated from the time Dr. Biswas saw him in 2019 which may have accounted for the difference in opinions. As well, Dr. Biswas unequivocally maintained that the applicant needed psychological treatment to be able to return to work. To me, her conclusion rested on the applicant receiving psychological treatment, which he did not have up to that point. As well, recovery from his psychological symptoms (anxiety, depression, and somatic preoccupation) even if temporary, was dependent on his level of recovery from his physical pain symptoms before he could return to work. It appears that the trial of psychological therapy to see whether he was able to learn to deal with his mood and somatic preoccupation in a more adaptive way, was never completed. Certainly, the applicant’s physical pain symptoms have not abated. Dr. Biswas also did not have the benefit of the functional data from an OT. For all these reasons, I did not discount Dr. Biswas’ report and evidence, rather I preferred Dr. Davidson’s more current assessment.

76The IE neurological examination by Dr. Brandon Kucher dated August 15, 2019, concluded that from a neurological perspective the applicant does not suffer from an accident related objective neurological impairment or disability which results in a complete inability to engage in any employment or self employment that he would otherwise be suited for by means of education, training or experience.

77I put little weight on Dr. Kucher’s report as his opinion was limited to his specialty as neurologist, and he did not consider the applicant’s job as an Uber driver in any detail, nor provide any analysis how he arrived at his conclusion regarding the complete inability test. The assessment only lasted 45 minutes and he did not explain why he found that the applicant’s functional and physical limitations as described by the applicant were not consistent with the functional and physical limitations observed during the assessment. Remarkably Dr. Kucher noted that the applicant reported headaches on a 10/10 scale, had trouble reading/vision complaints, complained of dizziness, concentration, and memory problems. Yet Dr. Kucher had no further recommendations, investigations or other treatment.

78The respondent also relies on the Vocational and Transferrable Skills Analysis (TSA) completed on August 6, 2019 by Angela Nicastro, vocational evaluator/labour market specialist, who determined that the applicant could work as a: Customer Service Clerk, Retail Salesperson (i.e. furniture/car sales), and Material Handler (i.e. forklift driver). These options were recommended because they fall within the limited or sedentary category, which should allow him to sit and stand as he feels is necessary. Ms. Nicastro concluded that from a vocational perspective, the applicant was able to demonstrate skills and aptitudes that would be considered competitive for employment. As such, the applicant does not suffer a complete inability as a result of the accident, to engage in any employment for which he is reasonably suited by education, training, or experience.

79Overall, I do not accept that the applicant can fulfill the duties of any of these positions, in large part due to his functional limitations and psychological problems. These options also did not consider that the applicant’s first language is not English, that he has limited writing and reading skills, and that he has been self employed for most of his prior jobs. I find that these occupations are also not employment for which the applicant is reasonably suited for by reason of education, training, or experience. Some of the wage rates were as low as $14.00 per hour, which is significantly less than the $24.04 per hour the applicant was earning at the time of the accident. Additionally, the applicant was essentially self employed in many of the jobs he has done in the past (Uber driver, Pizza store manager, mechanic at his own garage). A self-employed individual usually works independently and is usually free to work when and for whom they choose. He sold his garage many years ago in 2004.

80I note that Dr. Davidson reviewed the TSA and concluded that the applicant is not able to do any of these jobs. She explained in her testimony that there are limitations to this assessment, specifically, that it did not consider or relate how the applicant’s physical and psychological symptoms affecthis ability to do these jobs.

81It is also important to note that Ms. Nicastro stated in her report that the proposed vocational options are made from a strictly vocational perspective. As such, the physical or psychological suitability of the occupations suggested in this report should be verified by the appropriate medical specialist. In other words, the vocational recommendations might be contingent on the applicant receiving medical clearance to return to work. Here the applicant has not engaged in any job for the last several years, is physically de-conditioned and has gained weight. I was not referred to any medical evidence that expressly cleared him for any of these positions.

82The Labour Market Survey (LMS) of Angela Nicastro, vocational rehabilitation professional, dated September 3, 2019, focused on both full time and part time employment opportunities based on job targets identified in the TSA. The LMS provided names of potential employers including current job postings, and is generally helpful for looking at possible job opportunities for someone in good health who has recovered or reached maximum medical recovery. However, the LMS is of limited assistance as far as the post 104 test, because it does not consider the applicant’s current physical disabilities or his psychological condition as far as suitability for these jobs. I also note that the job of a forklift operator requires a licence and experience which the applicant does have. With respect to retail salesperson at Leon’s or The Brick the job requires standing and walking which the applicant may find very challenging and likely could not do. For all of these reasons, I put limited weight on the TSA and LMS as far as the post 104 test.

83I must also assess what other jobs the applicant is reasonably suited for based on his training, education, or experience. The applicant was born in Egypt and came to Canada in 1991. English is his second language. He completed a mechanical diploma equal to high school when he was in Egypt. In Canada, he did Grade 12 in Auto Customer Services studies. He took a one-day course to become an auto dealer to sell cars. There was some evidence that he may still be registered as car salesman with Hanna Auto Sales. He does not have any significant computer skills although he is able to use email and other social media. The TSA indicated that prior to his pre-accident employment, he worked at Gino Pizza as a manager of a franchise for 7 years, and at Able Transport for 3 years as a driver. Prior to this, he worked as a general mechanic for his own garage for 10 years. He still worked at his own garage after surgery in 1996 on and off and had helpers, but could not sustain the business, so he sold his company in 2007. Prior to this, he was a general mechanic with a dealership from 1992 to 1995.

84His most recent employment experience has been as an Uber driver. All of his past jobs have essentially been in a self employment type capacity. He does not have any other degrees, diplomas, or relevant training. English is his second language and also presents a challenge for him. I find that the applicant is not formally educated for any specific job. Although he has training in auto sales and has worked in a garage, his most recent experience relates only to working as a driver. His other jobs that he did are very dated, and it would be very difficult to catch up. The work of a mechanic would likely require re training and be physically demanding and require prolonged standing. I accepted the applicant’s testimony that he was currently not working as auto salesperson despite being registered with OMVIC. As well, he has no real formal education or experience to perform such jobs as forklift driver or furniture sales. Even sedentary occupations still require concentration, endurance, tolerance, and consistency.

85In summary, the overwhelming evidence was that the applicant continues to experience significant physical limitations with respect to prolonged sitting, standing, and walking. He is unable to tolerate the required sitting or perform the required control of a vehicle with his left shoulder dysfunction, or adequately control the pedals with his right ankle dysfunction. Moreover, because of his chronic pain, including pain preoccupation combined with depressive and anxious symptoms, he is unable to engage in consistent work. His fatigue, low mood, trouble sleeping/bad dreams, sense of helplessness, feelings of anger and irritability, suicidal ideations/actions, memory, and concentration problems pose a barrier to him resuming any work duties. As the applicant said at the hearing: “I can not do anything for more than five minutes.”

86Therefore, I find that the applicant suffered both physical and psychological impairments as a result of the accident, has provided persuasive evidence, and meets the post-104 test for IRB eligibility. The clear, unequivocal conclusions from the applicant’s qualified experts relating directly to the IRB criteria who were essentially unchallenged, combined with the applicant’s own credible testimony, were preferred over the insurer’s IE’s.

Stoppage Date

87The Case Conference Order stated that the applicant was requesting $278.00 per week from March 10, 2020 to date and ongoing. However, during the hearing the parties clarified that the actual date was May 20, 2020. My review of the correspondence is that this was the correct stoppage date for the IRB.

88By correspondence dated December 12, 2019, the respondent notified the applicant that as of January 1, 2019 the IRB will be payable at $200.00 per week, because post accident losses are not claimable beyond the end of the calendar year in which the business stopped operating. As the applicant stopped driving his Uber as of June 2019, post accident losses can only be included in the claimant’s quantum calculations until December 31, 2019.

89Upon completion of the s. 44 IEs, a further letter dated February 19, 2020 from the respondent to the applicant, confirmed that the IRBs were stopped effective March 11, 2020. However, a further follow up letter from the respondent dated May 10, 2020, stated that they did not attach an Applicant’s Right to Dispute form. On that basis, the respondent amended the IRB stoppage date to May 20, 2020 and made the final payment in the amount of $4,000.00 for the period March 11, 2020 to May 20, 2020.

Quantum

90With respect to quantum, s. 7(1) of the Schedule provides for the calculation of the quantum of the IRB to an insured who becomes entitled to the benefit before their 65th birthday. The IRB calculation is the lesser of “A” and “B”. Under s. 7(1), “A” is defined as the weekly base amount determined under s. 7(2), less the total of all other income replacement assistance, if any, for the particular week the benefit is payable; whereas “B” is $400 or, if optional IRB has been purchased, and applies the amount fixed by the optional benefit. In this vein, it is well-settled that an IRB is “capped” at a maximum amount of $400 per week unless an insured purchase optional benefit.

91The applicant provided no authority otherwise. The applicant contested the quantum but did refer me to any accounting report or calculations to support his position. In direct examination the applicant stated that his weekly calculations were wrong. However, he also did not address quantum in final submissions. The only accounting reports submitted were the respondent’s BDO Reports dated January 4, 2019 and October 31, 2019. The applicant has the onus to also prove quantum as well.

92Here, the respondent calculated the applicant’s quantum of IRB based on the documentation set out in appendix A to the reports (2016 and 2017 personal income tax returns, notice of assessments, pay statements, Uber tax summary, bank statements, weekly earning statement from Uber, etc.) which indicated $14,875 gross income from employment for the 52 weeks prior to the accident. The IRB payable was $279.00 per week until December 31, 2019 (based on report dated October 31, 2019), and then as of January 1, 2020, $200 per week based on the Tribunal decision of N.C. and RBC General Insurance Company released on December 7, 2016⁸ that post accident losses are not payable beyond end of the calendar year in which the business stopped operating. The applicant’s self employment at Uber stopped in June 2019, therefore, post accident losses can only be included in the calculations until December 31, 2019.⁹

93The applicant did not oppose this explanation or provide any case law to dispute the finding in N.C and RBC General Insurance Company (that section 4(4) of the Schedule provides that business losses are determined in the same manner as they would be determined under subsection 9(2) of the Income Tax Act), or the rationale for these calculations. I therefore find that the IRB was properly calculated by Intact. Accordingly, I find that the applicant’s weekly income benefit from May 20, 2020 and ongoing should be $200.00 per week, that is, the amount identified in BDO report, and he is not entitled to claim a weekly business loss amount if he does not operate his business.

Adverse Inference

94The applicant argues that an adverse inference can and should be drawn against the respondent for its failure to produce the assessors’ CNRs and to call Dr. Abuzgaya. The general rule on adverse inference is that where a party fails to adduce evidence, either through witnesses or by documents, which it would naturally be expected to bring before the trier-of-fact, an unfavourable inference may be drawn against that party.

95In support, the applicant relies on P.T. v Aviva General Insurance, 2020 CanLII 61456 (ON LAT) (“P.T.”). This decision can be distinguished on its facts. In that case, the Tribunal did not specifically find an adverse inference for the failure of the applicant to produce necessary documentation regarding proof of his IRB claim – rather that the lack of information was addressed as part of the applicant’s burden of proof. In ML v Zenith Insurance Company, 2020 CanLII 34474 (ON LAT) (“M.L.”) an adverse inference was found against the applicant for its failure to comply with a production order. There the adjudicator drew the inference that in the complete absence of any explanation the documents either do not exist or they do not support the applicant’s case. In M.L., as in P.T., the adjudicator decided the benefits based on the evidence available, holding the applicant did not satisfy their onus.

96I find that this is not an appropriate situation to draw an adverse inference against the respondent in this case. The respondent did produce some CNRs (see letter dated June 24, 2021), and was able to explain that the remaining were not available despite best efforts to obtain them because they did not exist. It is not unusual for s. 44 assessors not to have notes of their assessment. As well, the respondent summonsed Dr. Abuzgaya, but he was out of the country and not available. I asked the parties if they wanted to seek more time, but they both wanted to proceed with the hearing with the witnesses available.

97I also note that the respondent requested numerous documents from the applicant – several which were never not provided. For example, at the hearing, there were submissions that the applicant did not provide updated Income Tax Returns explaining that he never filed for the years 2019 and 2020. The accident occurred in 2017, surely, the applicant must have known that his tax returns were important for the determination of his IRB claim, and could have taken steps to complete them.¹⁰ For all of these reasons, I decline to draw an adverse inference against the respondent.

ISSUE 2: Award

98The applicant claims an award under Regulation 664. An insurer will be liable to pay an award if it is found to have unreasonably withheld or delayed the payment of benefits. The received test for what constitutes unreasonable behaviour is found in Plowright v. Wellington Insurance Co.:¹¹

“Unreasonable” behaviour by an insurer in withholding or delaying payments can be seen as behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.¹²

99Although I have found that the respondent was wrong in its denial of the IRBs, this does not automatically entitle the applicant to an award. It is well accepted that an insurer is not to be held to a standard of perfection, but rather, it should be held to a standard of reasonableness. The conduct of the insurer must rise above making an incorrect decision. The conduct must essentially be so egregious, that it should have been patently obvious to the insurer that the benefits ought to be payable. This was not the case here.

100On these facts, I find that there is no behaviour that rises to the level of “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” conduct warranting a s. 10 award in this case for the following reasons:

i. Having reviewed the viva voce evidence, submissions and documents including the adjuster’s log notes, I find that the insurer gave reasonable consideration to all the information then available to it in assessing the claim. I find that there is no evidence that the denial of the IRB was improper, especially in light of the medical information the insurer had in its possession regarding the applicant, including the well documented pre-existing injuries that made causation a contentious issue.

ii. The respondent based its denial on three IEs including a Vocational Assessment with Transferable Skills Analysis and Labour Market Survey as part of a comprehensive multi-disciplinary assessment that found that the applicant does not suffer a complete inability to work in any employment for which he is reasonably suited by education, training or experience. As stated, an insurer can make the wrong conclusion without having acted unreasonably. I find that the respondent’s denial of the IRBs was based on properly scheduled assessments by qualified health professionals who opined on the correct question that was posed to them and which they addressed (i.e. the complete inability test). As mention, Dr. Biswas conducted a thorough and lengthy in person assessment which Intact relied upon. The respondent also conceded causation with respect to the psychological impairments recognizing Dr. Biswas’ psychological diagnosis. This was not a situation where the respondent simply ignored the comments or conclusions of its own assessors or addressed a different issue. It would certainly be different if the respondent ignored any diagnoses from their own assessors, but this did not happen in this case.

iii. Insurance adjusters are not medical professionals and they should not be held to that standard. I find it is unreasonable and unfair to expect adjusters who come and go with some regularity, or where there are multiple adjusters, as in this case where there were several, to micromanage the assessments of qualified professionals to ensure that their reports respond directly to the specifics of a claim or else risk exposure to a s. 10 award if they do not do so.

iv. Yes, there was a delay in paying the IRBs. The first positive OCF-3 was received on October 23, 2017 (see log note of same date), about two months after the accident. But the first IRB was paid more than several years after the accident. So, what accounted for the delay? Norman Bertrand, the senior claims adjuster testified it was not uncommon to withhold payment where there were outstanding s. 33 requests. Under s. 33(1)1 of the Schedule, an insured person must provide upon request any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit. Further, pursuant to s. 33(6) an insurer is not liable to pay a benefit during any period in which the applicant fails to provide the insurer with the requested information.

v. Upon review of the log notes it appears that a large part of the delay was due to the applicant’s inability to provide the requested income documentation in a timely manner. This was required for the respondent’s accounting firm BDO to calculate the amount of the weekly IRB. As well, because the applicant was self employed, it meant that BDO would require additional documentation to calculate his income. How else were they going to know what the weekly amount of the IRB was? The Employer’s Confirmation (OCF-2) form was completed by the applicant himself but did not provide a lot of helpful information. He lists income of $73,113.72 but does not fill in the required information for the gross income for the last 4 weeks before the accident or the last day worked.

vi. The log notes entries support my finding that the applicant did not provide his income verification documentation to calculate his IRB which caused the delay in obtaining the accounting report from BDO. For example, the log note of June 22, 2018 states that the respondent does not have the documentation or information to calculate the IRB. The log note of August 14, 2018 indicates that BDO does not have the necessary information to determine IRB as there is post MVA income. Similarly, the note of January 9, 2019 references outstanding documents including HST for self employment and copies of bank statements. Further, the notes of January 17, 2019 indicate that IRB payment was made but that BDO still required additional information for IRB calculation September 9, 2018 to present. Two April 4, 2019 notes state that the applicant is still collecting requested information and will provide as soon as they receive it and that BDO will keep the file in abeyance until they receive further documents from the claimant. There are other notes of July 16, 2019, October 2, 2019, and October 29, 2019 of BDO still looking for further documentation. Only when the respondent received the BDO report did they make the payment (see note of January 17, 2019).

vii. The applicant stated that all relevant documentation was submitted in August 2018. However, the log notes confirm that this clearly was not the case. For example, the notes of January 17, 2019 indicate that IRB payment was made, but that BDO still required additional information for IRB calculation September 9, 2018 to present. This note is especially telling as it shows that the respondent paid the IRB in good faith notwithstanding that their accountant was still looking for additional information from the applicant.

viii. I did not have enough particulars (i.e. letters between parties, the actual s.33 requests from Intact) to make a determination as to the specific dates/period to substantiate whether the delay on the part of the respondent was unreasonable. It also appears that applicant’s lawyer was directly corresponding with BDO regarding the outstanding documentation.

ix. The applicant did not file any particulars regarding the award. The application only states “non-sabs compliant insurer examination and denial of benefits.”

x. There was also information that there was a priority dispute with another insurer that accounted for the adjusting of the file. The log notes of October 27, 2017, December 7, 2017 and November 30, 2017 refer to correspondence with another insurance company regarding a priority dispute. As well, the log note of December 10, 2018 states that the respondent spoke with the applicant and the applicant attempted to claim with his personal insurer AllState and they denied the claim as he was operating for Uber.

xi. The respondent paid the applicant pre-104 IRBs up to the stoppage date. These payments have all been made in full.

xii. The IRB’s were initially stopped effective March 11, 2020. However, after sending the explanation of benefits letter, the respondent realized that they did not provide the required Applicant’s Right to Dispute form. As a result, they properly amended the date to May 20, 2020 and made an additional payment for the period March 11, 2020 to May 10, 2020 because of this inadvertence. This showed flexible and reasonable conduct.

xiii. The decision not to call any witnesses and proceed with the hearing (despite knowing that a key expert witness was not available) significantly shortened the hearing. The respondent did not ask for an adjournment which could have prolonged the matter. I found respondent’s counsel who conducted the hearing to be very helpful especially regarding trying to accommodate the applicant’s request to question several adjusters.

101The applicant cited S.M. vs. Unica Insurance Inc., 2020 CanLII 12718 (ON LAT) where an award was made amounting to 25% of the partially denied attendant care amounts. However, on Reconsideration¹³ the award and interest were set aside because the award was not supported by evidence of the insurer’s conduct, the reasons supporting the award were not sufficient to justify the magnitude of the award, and the rationale provided significantly waters down the threshold of what constitutes unreasonable withholding and delay. That applicant appealed to the Divisional Court who denied the appeal citing the Plowright test and agreeing with the reasoning in the Reconsideration.

102The applicant cited other decisions which are distinguishable, and the applicant did not engage in an analysis of how the respondent’s conduct in this matter was analogous to those cases.

103Based on the record before me, I find there is no behaviour on the part of the respondent described in the submissions or any of the evidence that rises to the level of “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” conduct warranting a s. 10 award.

ISSUE 3: Costs

104The applicant requests an order for costs in the amount of $1,000.00 per day for the hearing (4 days), the case conference and teleconference motion heard on May 4, 2021¹⁴ pursuant to Rule 19 of the Rules. Rule 19 permits the Tribunal to order costs where a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. This is a high threshold. The amount of costs shall not exceed $1,000 for each full day of attendance at a motion, case conference or hearing, and the Tribunal may deny or grant the request for costs or award a different amount than requested.

105The applicant submits that the respondent acted in bad faith in the course of the proceeding by requesting an oral hearing when the applicant wanted a written hearing, forcing the applicant to call his experts and then not calling any witnesses, breaching two Tribunal orders with respect to productions, producing log notes without particulars for redactions, and attempting to serve a supplementary document brief late.

106Rule 19.5 directs that in deciding whether to order costs and the amount of costs to be ordered, the Tribunal shall consider all relevant factors including: the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.

107I find that the applicant’s claim for costs fails as he has not proven on a balance of probabilities that the respondent has acted unreasonably, frivolously, vexatiously or in bad faith in this proceeding. While I agree that the late service of the log notes may have caused some inconvenience, inconvenience, and the expense of preparing for a hearing are not grounds for a claim for a cost award under Rule 19 or for the cost of their involvement in a proceeding. In the end the log notes were produced.

108With respect to the applicant’s claim that the respondent did not call any witnesses, there is no rule that a party must call witnesses. I also note that respondent’s counsel advised the applicant at the start of the hearing that they did not intend to call anyone. The applicant did not call all of the witnesses he listed in counsel’s letter dated June 3, 2021 (Kelly Ketner and Henry Gonzalez the adjusters). With respect to the breach of the Tribunal orders, the respondent explained their best efforts to try to obtain the documentation including the CNRs which were in the control of third parties. This appeared to me to be inadvertent behaviour as opposed to intentional behaviour or anything amounting to bad faith.

109In support of its submission for costs, the applicant relies on several Tribunal decisions where costs were imposed following a hearing. These cases are all distinguishable on their facts and are of no persuasive value in determining the merits of a cost award in this matter. For example, in S.S. v Aviva General Insurance Company, 2019 CanLII 130376 (ON LAT), costs were awarded in the nominal amount of $150.00 regarding the applicant’s conduct in communicating with a witness. In M.M.S. and Wawanesa Mutual Insurance Company¹⁵ the applicant was entitled to costs in the amount of $250.00 for the extra effort to seek an order enforcing productions where the respondent made no attempt to produce the document until a second Order was made.

110While I am alive to applicant’s submissions and appreciate what may have been a frustrating proceeding, I do not find that the respondent’s conduct amount to behaviour that is unreasonable, frivolous, vexatious or indication of bad faith. As an insurer, Intact was entitled to defend its reasons for denying the benefits and ask for an oral hearing on the basis that they wanted to cross examine the applicant’s experts which they did. Accordingly, I decline to order costs.

ISSUE 3: Interest

111Pursuant to s. 51 of the Schedule, an insurer is required to pay interest on any overdue payments of a benefit.

112I find that the applicant is entitled to be paid interest on overdue IRB payments owed to him by the respondent at the prescribed rate.

ORDER

113The applicant is entitled to an IRB in the amount of $200.00 per week from May 20, 2020 to date and ongoing.

114The applicant is not entitled to an award or costs.

115Interest is payable on any overdue benefits in accordance with s. 51 of the Schedule.

Footnotes

1. 1Ontario Regulation 34/10.
2. 2Section 12(3) of the SPPA requires a summons to be served personally on the person summonsed.
3. 3Notice of Motion dated June 21, 2021 and Schedule A; Supplementary Schedule A dated June 21, 2021; and Notice of Motion dated June 25, 2021 and Schedule A.
4. 4Vocational Assessment with Transferable Skills Analysis and Labour Market Survey of Angela Nicastro dated September 3, 2019; Psychological Examination of Dr. A. Biswas dated September 3, 2019; Psychological Examination of Dr. R. Lubbers dated December 31, 2020; and reports of Dr. F. Abuzgaya.
5. 5The Case Conference Order stated that the period in dispute for the IRB was March 10, 2020 but the parties agreed at the hearing the correct date was May 20, 2020. Also see letter from Intact dated May 20, 2020 confirming the stoppage date of May 20, 2020 at p. 107 of the Applicant’s Document Brief.
6. 6Disability Certificate at tab 3 of Applicant’s Brief.
7. 7Mental/Behavioral Evaluation dated July 13, 2020 as part of catastrophic impairment determination; Mental Behavioural Addendum dated November 20, 2020 to assess post 104 IRB.
8. 816-000282 v RBC General Insurance Company, 2016 CanLII 93134 (ON LAT) at para. 24 and 25.
9. 9See letter dated December 12, 2019 from Intact to the respondent.
10. 10See letters dated December 17, 2019 (items #1-12), letter January 21, 2020 (items # 1-5), March 30, 2020 (items # 1-9) and June 1, 2020 (items # 1-4), October 8, 2020 (items #1-12) willing to cover all reasonable costs of obtaining this information . Apparently, the October 8, 2020 letter was the fifth such request for productions.
11. 111993 OIC File No.: A-003985 (FSCO) [“Plowright”].
12. 12Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603 at para. 46.
13. 13S.M. v Unica Insurance Inc., 2020 CanLII 61460 (ON LAT).
14. 14On March 24, 2021 the respondent filed a motion requesting that the applicant add the issue of the catastrophic impairment to the application which was denied.
15. 15Applicant’s Book of Authorities at tab. 11.