Citation: Mustansar v. Coseco Insurance, 2023 ONLAT 21-003343/AABS

Licence Appeal Tribunal File Number: 21-003343/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:

Ahmed Mustansar

Applicant

and

Coseco Insurance

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Maria Mikhailitchenko, Counsel

Victoria Polyakevich, Counsel

For the Respondent:

Emily A. Schatzker, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Ahmed Mustansar (the “applicant”) was involved in a motor vehicle accident on March 1, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Coseco Insurance (the “respondent”) denied income replacement benefits (“IRB”). The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Is the applicant entitled to IRB of $400.00 per week from March 8, 2020 to date and ongoing?

2. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

3I find that the applicant is not entitled to IRB, as he has not demonstrated that he suffered from a substantial inability to perform the essential tasks of his employment in accordance with s. 5(1) of the Schedule. It follows that he is also not entitled to interest.

ANALYSIS

Income Replacement Benefits (“IRB”)

4To receive payment for pre-104 week IRB under s. 5(2) of the Schedule, the applicant must be self-employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that self-employment. He must identify essential tasks of this self-employment, which tasks he is unable to perform, and to what extent he is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that he meets the tests and criteria noted above.

5Here, as clarified in his submissions, the applicant is seeking $400.00 per week in pre-104 self-employment IRB for the period of time between March 8, 2020 and his return to work as an electrician with Zeus Electric on February 19, 2021 (amounting to a total of $19,800.00, plus interest, according to the applicant’s submissions). He claims that the accident-related injuries resulted in acute pain in his lower back along with psychological impairments including anxiety and stress, both of which caused him to suffer the substantial inability to perform his essential work tasks.

6In response, Coseco argues that the applicant has not provided medical evidence substantiating that his injuries caused him to be unable to substantially perform the essential tasks of his employment. In addition, the respondent claims that surveillance indicates that the applicant continued to work during the time period he is claiming IRB. The respondent also submits that the applicant has failed to provide sufficient documentation verifying his post-accident income.

7Therefore, the respondent alleges that the applicant is in contravention of both s. 33(1) of the Schedule that mandates an applicant to provide information to an insurer as reasonably required, as well as the case conference report and order (“CCRO”) dated March 10, 2022 that set this matter down for a written hearing. As a result, the respondent is requesting that the application be dismissed.

The applicant is not entitled to IRB

8I find that the applicant has not met his burden and demonstrated that he suffered a substantial inability to perform the essential tasks of his self-employment. He is not entitled to IRB, nor interest.

9The applicant adduced minimal evidence regarding his physical injuries and psychological impairments. Much of what he relies on comes from an undated Application for Accident Benefits/OCF-1 and a Disability Certificate/OCF-3 completed by Dr. Roger Singh, chiropractor, dated March 31, 2020. While the OCF-3 indicates that the applicant suffers from the substantial inability to perform the essential tasks of his employment, and notes injuries and sequelae including sprains and strains of the spine, low back pain, anxiety, and acute stress, I assign this report little weight as it is unsupported by objective medical evidence.

10In actuality, the applicant does not direct me to any specific medical evidence in submissions that would substantiate the OCF-3 assertion that he was not able to substantially complete essential work tasks post-accident. Although the applicant references the clinical notes and records (“CNRs”) of his family physician, Dr. A. M. Yakub, he does so in a general fashion with the apparent expectation that I should seek out relevant evidence from this 45-page document to support his claims to have suffered lower back pain, anxiety, and stress to the point where he was not able to work during the time period at issue for IRB.

11The applicant does specifically direct me to an MRI report dated September 8, 2020, as well as a report written by Dr. Biljana Kostovic, family physician, of the Centres for Pain Management, and dated August 13, 2020. However, neither report supports this IRB claim. While the applicant implies in submissions that the MRI indicates that the accident resulted in a posterior disc bulge that affected his ability to stand, sit, and bend, the clinical impression section of the report actually notes “[m]ild degenerative changes, as described, most pronounced at L5-S1 with a posterior disc bulge.” There is no conclusion that these issues were caused by the subject accident.

12Also, the report completed by Dr. Kostovic does not mention the applicant’s employment situation. It includes an extensive review of the applicant’s back pain, range of motion issues, and sequelae that he claims to be the result of the accident. But the focus is on the applicant’s overall health and the physician’s recommendations for treatment—not his job status with regard to his physical issues.

13In all, none of this medical evidence has been connected to the IRB tests assessing the applicant’s ability to perform his work post-accident. Aside from abbreviated proclamations in written submissions about lower back pain causing the applicant difficulty standing, sitting, and bending, he does not identify essential tasks of his job as a self-employed electrician or to what extent he was unable to perform them due to his claimed injuries during the period of time he is seeking IRB.

14I prefer the evidence of the respondent, which is thorough and speaks more directly to the post-accident condition of the applicant.

15Conclusions of the insurer examination (“IE”) reports indicate that the applicant did not suffer from psychological or physical impairments that interfered with his ability to perform the essential tasks of his employment. In a psychological assessment IE report dated December 23, 2020, Dr. Jason Bacchiochi, psychologist, noted that the applicant did not meet any DSM-5 diagnoses and that the applicant believed he did not require psychological treatment or counselling. Dr. Alfonse Marchie, physiatrist, wrote in a physical IE assessment report also dated December 23, 2020 that the applicant displayed a full range of motion, save for some difficulty with lumbar flexion. Nothing in the IE reports specify that the applicant had any issues that would meet the IRB tests.

16In addition, Dr. Marchie opined in a paper review dated February 18, 2021 that a Larrek Investigations video surveillance report dated November 18, 2020 commissioned by the respondent showed the applicant performing full lumbar flexion movements, walking swiftly and entering/exiting a pickup truck with no signs of discomfort, jumping off this truck, and picking up equipment associated with his self-employment as an electrician. Dr. Marchie concluded from his review of multiple surveillance videos that the applicant was able to work.

17Moreover, the surveillance report shows the applicant apparently working as an electrician on October 22 and 24, 2020, as well as on November 3 and 4, 2020. This surveillance took place during the time when the applicant claimed to be off work due to injuries and impairments suffered in the subject accident. Despite the assertion that he was unable to work, surveillance revealed the applicant driving a truck to what appeared to be workplaces as well as building supply stores. He was observed lifting, bending, and carrying materials, tools, and work equipment without apparent difficulty. The respondent also notes that Mississauga Hospital records from July 31, 2021 noted that the applicant was treated for an abscess that resulted from wearing a work belt while working as an electrician.

18As a result, it seems readily apparent that the applicant was working during the time in which he is seeking IRB. This evidence was also left unchallenged by the applicant, who did not file reply submissions.

19For the above reasons, the applicant is not entitled to IRB, nor interest. As this finding is determinative on its own, I find that it is not necessary for me to provide a ruling on the respondent’s claim that the applicant did not provide income documentation as required by both s. 33(1) of the Schedule and by the CCRO.

ORDER

20The applicant is not entitled to IRB, as he has not demonstrated that he suffered from a substantial inability to perform the essential tasks of his employment in accordance with s. 5(1) of the Schedule. It follows that he is also not entitled to interest.

21The application is dismissed.