Licence Appeal Tribunal File Number: 20-010115/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Muna Hasan
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Jessica Fullerton, Counsel
For the Respondent:
Bruce Chambers, Counsel
Interpreter:
Amal Khoury - (Arabic language):
Court Reporters:
Alyssa Scott and Michelle Gordon
Heard by Videoconference:
December 5-8, 2022
OVERVIEW
1Muna Hasan, the applicant, was involved in an automobile accident on December 16, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule1 (the “Schedule”). The applicant was denied benefits by Certas Direct Insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY MATTER
2The applicant sought to exclude the evidence and testimony of Dr. Ronald Frey (psychologist) at the hearing. There were multiple reasons for this, including claims that Dr. Frey’s reports were based on an incomplete investigation and unsubstantiated conclusions, as well as concerns regarding his suitability to provide evidence given an ongoing professional matter. The applicant also sought to bar the reports of Dr. Mohammed Abdul Wahab Khan (Physiatrist) because he was unavailable to testify, and therefore his evidence could not be cross-examined.
3The respondent argued it was premature to deal with this preliminary matter because the applicant’s concerns about Dr. Frey’s evidence could be addressed in cross-examination. The respondent expressed consent to adjourn the hearing so Dr. Khan’s evidence could be cross-examined.
4I decided to allow the evidence of both expert witnesses to proceed. This is because I could not otherwise ascertain if the evidence in question was necessary for a full and satisfactory understanding of the issues in the proceeding (i.e., relevance). However, in consideration of the arguments made by the applicant, I gave both parties leave to make submissions on the weight I should give to this evidence as part of their closing submissions.
ISSUES
5At the start of the hearing, the applicant advised that issue no. 1 as listed in the application—an income replacement benefit (the “IRB”) in the amount of $400.00 per week from November 16, 2016, to February 8, 2019)—was withdrawn. Therefore, the remaining issues in dispute are:
a. Is the applicant entitled to an IRB of $185.00 per week from February 8, 2019, to date and ongoing?
b. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
c. Is the applicant entitled to interest on any overdue payments of benefits?
RESULTS
6The applicant is entitled to an IRB and interest owing.
7The respondent is liable to pay an award on pre-104 IRB (inclusive of interest), but not post-104 IRB.
ANALYSIS
IRB
8The applicant’s accident occurred on December 16, 2016. The disputed period for the applicant’s IRB claim starts February 8, 2019, which is after the first 104 weeks of disability. Therefore, the applicant bears the onus of proving she meets the IRB eligibility criteria set out at Section 6(2)(b) of the Schedule. That section obligates the insurer to pay an IRB to the applicant if, because of the accident, the applicant suffers a complete inability to engage in any employment or self-employment for which the applicant is reasonably suited by education, training, or experience.
9Neither party disputes the value of the IRB or whether the applicant meets the employment criteria set out in Section 5(1) of the Schedule. As such, this issue is narrow and pertains only to the “complete inability” test.
10The applicant contends her “primary barrier to … return to any form of employment is her psychological condition,” and her onus to prove this relies heavily on reports by three medical professionals, namely Dr. Suddaby (psychiatrist), Ms. Natalie McCarty (occupational therapist), and Mr. Colin Moore (occupational therapist). Both Dr. Suddaby and Ms. McCarthy provided testimony in addition to their reports.
The evidence of Ms. McCarthy and Mr. Moore
11The evidence of Ms. McCarthy is not persuasive. Her assessment, dated June 9, 2021, did not investigate functionality as it pertained to employment. Rather, its aim was to do an in-home assessment, assess function in normal life activities, and provide equipment and service recommendations. In fact, Ms. McCarthy’s report offers no opinion or analysis on whether the applicant has a complete inability to engage in any employment, offering only that the applicant’s accident-related injuries “continue to impact her daily functioning, including participation in self-care, leisure, social, academic, caregiving, productive, and housekeeping tasks.”
12There is a reference in Ms. McCarty’s subsequent progress report—dated September 29, 2021—to the applicant not returning to work and being unable to perform her pre-accident tasks due to ongoing physical, emotional, and cognitive impairments. But this is a self-report offered by the applicant with no investigation, analysis or conclusion offered by Ms. McCarthy. In fact, none of the reported goals, interventions, observed progress or next steps speak to the applicant’s ability to engage in employment. My observations and findings on the second progress report completed by Ms. McCarthy on February 1, 2022, are the same.
13In short, Ms. McCarty’s testimony—that she believes the applicant’s emotional and cognitive injuries prevent her from working—is not substantiated by any of her reports, and I therefore place little weight here.
14Mr. Moore’s two reports pertain to in-home and situational assessments of the applicant, both dated October 14, 2022. Their objective was not to assess the applicant’s function to inform eligibility for an IRB, but rather to “determine (the applicant’s) functional status with respect to … catastrophic determination …”.
15I decline to rely on Mr. Moore’s reports in my analysis of the applicant’s evidence, and there are several reasons for this. Mr. Moore did not testify at the hearing and his reports did not figure prominently as a point of reference in Dr. Suddaby’s testimony. Mr. Moore’s reports were completed after Dr. Suddaby’s catastrophic determination report was finalized, and therefore did not weigh on Dr. Suddaby’s analysis. Although there are references in the evidence brief to a psychiatry addendum (dated September 14, 2022) by Dr. Suddaby that considered Mr. Moore’s reports, this document is not in evidence. Further, the applicant’s closing submissions did not point to any specific aspects of Mr. Moore’s reports, or offer any analysis of these reports, to support the legal test for IRB eligibility at Section 6 of the Schedule. Taken collectively, these factors diminished the relevance of Mr. Moore’s reports.
16It bears mention here too, that it is not the role of the adjudicator to make the applicant’s case. Simply entering reports as exhibits does not, in and of itself, meet the applicant’s burden of proof. The onus is on the applicant to prove entitlement, and this onus requires the applicant to point the adjudicator to relevant aspects of the evidence and offer a persuasive analysis of the facts. The applicant failed to do so for Mr. Moore’s reports, and I therefore give them no weight.
The evidence of Dr. Suddaby
17The applicant submits that Dr Suddaby—in his report dated “February 3, 2022”—concludes “(the applicant) is unable to work in any job currently given her psychological condition.”
18In fact, there is no report in evidence from Dr. Suddaby dated February 3, 2022. There is, however, an independent catastrophic impairment determination assessment conducted by Dr. Suddaby dated March 3, 2022. I accept this is the report intended to be referenced in the applicant’s submission, as it is the only report from Dr. Suddaby in evidence, and was the report referenced during his testimony.
19I am persuaded by Dr. Suddaby’s evidence to find the applicant has met her burden of proof for entitlement to an IRB. In fact, Dr. Suddaby concludes the applicant, “as a direct result of the psychiatric injuries caused by the (accident), suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience’” and that “from a psychiatric perspective, this impairment has been continuous subsequent to the (accident).”
20Dr. Suddaby explains his conclusion by offering several diagnoses and an analysis of the medical evidence in the context of functionality. He diagnoses the applicant with persistent depressive disorder (with psychosis), post-traumatic stress disorder, and somatic symptom disorder—all a “direct result of the (accident).” Dr. Suddaby explains his basis for causation as such: “(the applicant) denied any functional impairment prior to the (accident). She denied any history of mental illness or treatment for same. She denied any chronic pain problems. As such, there is no indication that, but for the (accident), (the applicant) would have developed any of her three psychiatric conditions. Therefore, her current psychiatric symptoms, diagnoses and related level of impairment are a direct result of the (accident).”
21I was not pointed to any compelling medical evidence that would cause me to doubt Dr. Suddaby’s analysis and conclusion on causation factors. Although the respondent challenges causation in this case, its argument is one that largely centers on physical injuries that are of little relevance in a psychological impairment context. Further, the respondent’s submission did not point me to evidence which substantiates—on a balance of probabilities—that war-related trauma is a cause of the applicant’s post-accident psychological condition, or that her arranged marriage, the social implications of her immigration to Canada in 2014, or the death of her father—all factors advanced in the respondent’s submission—caused sufficient mental distress to doubt Dr. Suddaby’s conclusion that the accident was a necessary cause of the applicant’s psychological impairments.
22Further, I do not accept the respondent’s unqualified suggestion that the applicant’s pre-accident history of headaches and blurred vision are psychological problems that speak to causation. I also do not accept the respondent’s position that the applicant’s post-accident psychological symptomology resulted from post-partum depression or partum psychosis because the respondent produced no evidence of this. In fact, while Dr. Suddaby agreed the applicant’s post-accident symptomology was consistent with these diagnoses, he could find no evidence to support a relationship between these symptoms and the birth of the applicant’s children. I see no reason to disagree with this analysis, given that the respondent did not point me to a contradictory medical opinion in its submission.
23In short, I am satisfied the applicant has proven, on a balance of probabilities, that but for the accident, she would not have suffered a complete inability to engage in employment for which she is reasonably suited by education, training, and experience. My finding here relies on the well-established principle that the accident need only be a necessary cause of her impairments, not the only cause.
24Dr. Suddaby’s report qualifies the psychosis diagnosis as important because “it indicates a loss of touch with reality and a greater severity of the depression.” He goes on to offer a prognosis: “it is not probable that (the applicant’s) psychiatric conditions, even with extensive treatment, are likely to show significant symptomatic or functional improvement, and as such, it is my opinion that Ms. Hasan’s incapacity to work will be present for the foreseeable future,” and “even with any type of accommodation.”
25Dr. Suddaby’s report then comments on the applicant’s functionality as it pertains to her psychiatric conditions. He says, “related to psychosis and anxiety, she would not be able to leave the home on a regular basis or tolerate attendance at the work environment (even virtually). She would not be able to tolerate stressors common to the work environment, including attendance, making decisions, scheduling, completing tasks and particularly would be unable to interact with supervisors and peers appropriately.” This analysis was reinforced during Dr. Suddaby’s testimony, in which he credited the applicant’s inability to work in any role due to being housebound for weeks on end, delusions, limited concentration and no tolerance for stress.
26I agree with Dr. Suddaby’s findings. Given the applicant’s delusional symptomology in particular—and considering its prognosis as well as its reportedly unpredictable and, in my view, disturbing and intrusive nature—I cannot fathom how the applicant could engage in any employment whatsoever, regardless how suitable it may be to her education, training and experience.
27While I recognize that Dr. Suddaby’s findings rely heavily on the applicant’s self-reports, I was not provided with any persuasive reason to doubt the applicant suffers psychosis that involves feelings of being “followed or watched wherever she goes, and that she hears voices and sees (dead) people” with increasing intensity and frequency since the accident. The applicant provides detailed descriptions of these delusions in Dr. Suddaby’s report:
“(The applicant) stated that during the daytime, she hears voices throughout the day. The voices are derogatory and ask questions such as, ‘Why are you sitting? What are you doing? Why are you silent? Have an argument with your husband.’ She reports that she has visual hallucinations of both her mother and her (deceased) father. She sees her father with ‘big red eyes.’ She sees her mother hovering over her when she is trying to fall asleep, and her mother is calling her name. She reports that she feels watched and followed when she is outside of the home. She has a sense that there is someone with her all the time, even when she is in the bathroom or in the shower.”
28The evidence establishes these types of complaints have persisted since the 2016 accident, and are not just constrained to Dr. Suddaby’s 2022 examination. The applicant’s previous family physician, Dr. Bashir Ahmed, noted accident-related psychological symptoms—such as severe anxiety and nervousness—in a medical report completed sometime in 20172. Dr. Suddaby’s report references the applicant describing “visual hallucinations in the past 3-4 weeks … (as well as) fears that she could be possessed,” to psychotherapist Mr. Ghassan Arabieh in October 2018. The applicant went on to tell Mr. Arabieh that “she has visual hallucination (sic) many months before; that she described that they were intense and scary.” Mr. Arabieh reported these “visual hallucinations that were frightening to (the applicant),” and which occurred “at the beginning of (2018) …”, to the applicant’s present family physician, Dr. Emad Habib, in an October 2018 letter.
29Dr. Suddaby’s report also relies, in part, on Dr. Habib’s records, and mentions his referral of the applicant for a “history of auditory hallucinations for two years after the (accident)” in November 2018. Hallucinations—both auditory and visual—are again referenced by Dr. Habib in December 2018. A month later, Mr. Arabieh reported continued complaints of intrusive traumatic memories and hallucinations to Dr. Habib. A February 2019 entry by Dr. Habib notes a recent panic attack that required emergency intervention. There are more legible complaints in Dr. Habib’s chart about the applicant’s hallucinations in May 2019, November 2020, and December 2020. In July 2021, Mr. Arabieh describes the applicant’s reports of “frightening visual and auditory hallucinations” as well as depression and post-traumatic reactions in a letter to Dr. Habib.
30Dr. Azaad Kassam (psychiatrist) conducted a psychiatric consultation with the applicant that same month. Like Dr. Suddaby, Dr. Kassam diagnosed the applicant as suffering from a generalized anxiety disorder with features of depression, as well as severe and chronic post-traumatic stress disorder. He did not find evidence of psychosis, but instead concluded the applicant’s hallucinations were in keeping with her latter diagnosis and referenced the applicant’s sleep difficulties in the context of:
“… sense of fear, experiences voices as well as visual hallucinations and delusions. She often feels like there is someone beside her … she reaches out to feel if somebody is there. It feels like she sees dead people, Satan, and she has images and dreams of dark places, cemeteries, and other themes of evil and death. None of these experiences occurred prior to the accident … (the applicant) has a hard time leaving the house for most days. At times when she forces herself to go out, she will hear her voice coaxing her to go back home and eventually she does.”
31Although I acknowledge there is evidence throughout the file that supports the applicant’s condition improved at various times since the accident, I put more weight on Dr. Suddaby’s prognosis because the evidence does not support her psychiatric condition has ever been in sustained remission.
The applicant’s credibility
32The respondent’s “disability analysis” did not persuade me, which argues “the applicant’s subjective reports of symptoms and disability are not sufficiently credible or reliable, particularly in the face of substantial objective evidence to the contrary, to discharge the burden of proof that she has a complete inability to engage in any suitable employment …”. The respondent further points to “objective indicators of functional capacity (that) undermine and contradict the applicant’s subjective reports of disability.” Specifically, the respondent claims the applicant:
“… has four daughters under the age of 7. She has had no assistance with childcare from anyone other than her husband since the accident. She has been able to attend ESL classes weekday mornings from 9:00 a.m. to 11:45 a.m., and successfully advance in the ESL program from Level 2 to level 4, or 5 … She is able to read, write and speak English. She has been able to pass the Canadian Citizenship Test in English, and has been able to obtain a Class G driver’s licence. She can use a phone and email. She can perform self care and provide care for her four daughters, and drive them to daycare or school as necessary. She can spend 20 to 30 minutes doing her daughters’ hair daily, and 20 minutes making beds. She can perform light cooking and cleaning, and help with laundry. She can go to the shopping mall with her family and have a wonderful time … She can go on car trips with her family from Ottawa to Toronto and Niagara Falls. She can attend the gym. She has been described as a ‘busy mom and homemaker’ with a ‘busy schedule’ such that she was not able to perform her relaxation routine.
33I find these evidentiary excerpts are essentially put forward by the respondent as arguments of credibility (i.e., they “undermine” and “contradict” the applicant’s reports and are not “not sufficiently credible or reliable”). Throughout the hearing and my review of the evidence brief, I found the applicant to be consistent in her recollections and descriptions of her functionality. I believe the applicant’s explanations for discrepancies raised by the respondent were both reasonable and plausible. I also believe some of the above points raised by the respondent have little-to-no basis in evidence. I provide several examples of this below.
34The respondent notes the applicant was described as a “busy mom and homemaker” in a January 2019 report. The applicant’s testimony on this matter was that these were “not my words,” and that the assessor wrongly assumed she would be busy throughout the day because he did not ask enough questions to learn, for example, that her children were in daycare and not being looked after by her.
35This, in my view, is a credible explanation because there is ample evidence to demonstrate the applicant did indeed rely heavily on childcare to support her children’s needs, and was not busy caring for them day-to-day. Which, in turn, provides a segue to my disagreement with the respondent’s assertion that the applicant has not required any assistance from anyone—other than her husband—to care for her children since the accident.
36The respondent’s position on this matter seems to rely on an assessment (dated January 11, 2019) by Ms. Sherry Mosher Taillefer (occupational therapist) that documents the applicant reporting “independence in all housekeeping and childcare tasks.” The applicant, in her testimony and throughout the file evidence, maintains her impaired psychological condition caused her to rely on daycare to support her children.
37In fact, Dr. Ahmed completed a 2017 medical report to request subsidized childcare for the applicant because of “severe anxiety” relating to her accident. On May 19, 2018, Mr. Arabieh’s progress notes share the applicant’s concerns about losing her childcare subsidy. Then two days later, Mr. Arabieh wrote a letter of support for subsidized childcare owing to “trauma-related challenges.” His subsequent progress note entered five days after his letter indicates the applicant received the subsidy. Dr. Habib too completed an undated medical report for a childcare subsidy, and described the applicant’s medical condition as “psychiatric and psychological problems after (her accident).” He also noted childcare was required as a support for this medical condition for 12 months up to November 2020. The additional comments provided in a treatment plan, approved by Mr. Luigi Iantomasi (claims adjuster) on May 17, 2021, note the applicant “continues to have difficulty engaging in … childcare … due to … low mood.” The commentary goes on to say the applicant “currently has her children enrolled in daycare due to her decreased tolerance to perform childcare tasks.”
38There is also the issue of the shopping trip and gym visit reported in Ms. McCarthy’s progress report of September 29, 2021. The respondent did not reference any evidence of further community errands, such as shopping, and I note Ms. McCarthy’s subsequent progress report (dated February 1, 2022) indicates the applicant had only “left the house once in the past three weeks.” That same report does indeed mention the applicant had “enjoyed pool exercises and using the hot tub” at a gym in the month of December 2021. But it then goes on to explain this was just one assisted visit, and the respondent’s submission does not point to any evidence of the applicant re-engaging in gym activity after the facility re-opened from pandemic restrictions in January 2022. As such, I can only conclude the shopping trip and swim excursion at the gym were infrequent events throughout the applicant’s post-accident history that do not serve as reliable indicators of any capacity to engage in work or of sustained remission of the applicant’s psychiatric impairments.
39The respondent also raises discrepancies shared by various assessors and the applicant’s family physician. However, the respondent does not provide any details of these discrepancies in its submission to consider, noting only “testimony,” various pages of the evidence brief, and evidence exhibits. This is not helpful because I cannot discern what specific testimony, paragraph, page, etc., pertains to the discrepancy the respondent had in mind. As such, this aspect of the respondent’s reasoning did not merit much importance in my decision.
The reports of Dr. Frey and Mr. Diamantis Zervas (vocational evaluation specialist).
40I did not rely on the reports of either Dr. Frey or Mr. Zervas. Dr. Frey’s conclusion that there is no “convincing evidence that is suggestive of a psychological disorder as a direct result of the (accident)” is solely based on two findings of credibility. The first finding, that there was a “significant difference between (the applicant’s) subjective description of pain and mood impairments … and her actual clinical presentation,” is too limited to carry much weight in the broader context proposed by Dr. Frey. Put differently, I am not persuaded by a global analysis of the applicant’s impairments that is based only on extrapolating observations made over a period of several hours, with no complementary analysis of the applicant’s considerable medical history. As well, while I see no reason to disagree with the testing results referenced in Dr. Frey’s summary and diagnosis section, I note they question only the validity of the applicant’s significant memory problem complaints, and that Dr. Frey presents no basis to invalidate the applicant’s complaints of delusions and hallucinations.
41The purpose of the assessment completed by Mr. Zervas—documented in his report of June 24, 2021—is “to determine a list of feasible employment options suitable for (the applicant) based on her personal and vocational characteristics, residual functional abilities/restrictions, education, and vocational history.” I accept the findings of this report, which identify several employment or business alternatives suitable to the applicant’s education, training, and experience. However, Mr. Zervas does not assess whether the applicant would be able to engage in these jobs, given her psychological difficulties. His testimony reiterated that his assessment was strictly vocational, and that whether the applicant is medically suitable relies on assessments by doctors. As such, I cannot conclude, based on the report contributed by Mr. Zervas, that the applicant can engage in the jobs identified during the vocational assessment. I can conclude only that there are jobs suitable to her education, training, and experience.
Award
42The applicant seeks an award under Section 10 of Reg. 664. Under Section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The onus is on the applicant to prove the respondent’s liability in this matter, and the applicant contends that both the pre-104 and post-104 benefit payments were unreasonably withheld.
Pre-104 period
43I find the respondent is liable to pay an award for unreasonably withholding or delaying payment of the applicant’s pre-104 IRB. This is because the applicant has proven that “by October 5, 2018, (the insurer) had everything it needed to calculate and pay the applicant an (IRB)”, well before remittance was made, and that there was no good reason for delaying that payment.
44The evidence shows the respondent twice failed to act on two separate OCF-3 (the “disability certificate”) submissions it had requested over a more than six-month period. I find the first disability certificate (dated October 25, 2017) was requested per the letter in evidence (dated April 5, 2017) and not as early as February 7, 2017, as submitted by the respondent. The second request was made by letter dated April 7, 2018, and the responding disability certificate was dated May 1, 2018. Both certificates were completed by Mr. Weiyi Yang (physiotherapist).
45The respondent argues the applicant had “never established entitlement to an IRB during the pre-104-week period in accordance with the (Schedule) by concurrently failing to provide a disability certificate evidencing entitlement and failing to provide the financial information required to calculate the benefit.” However, Mr. Iantomasi—who explained that multiple adjusters have managed this claim during its lifecycle and that he was not the adjuster responsible for the file at the time these certificates were requested—testified that both disability certificates obtained by the applicant supported entitlement to an IRB, as the applicant was determined to be substantially unable to perform the essential tasks of her employment by Mr. Yang.
46In his testimony, Mr. Iantomasi could not explain why a second request for a disability certificate would have been made. He went on to confirm the insurer had received both disability certificates by October 2018, and that both were reviewed by the insurer because they showed a status of “processed,” which can only occur if the document is reviewed. Mr. Iantomasi further testified the insurer did not acknowledge either of these disability certificates to the applicant or counsel, and he could not explain why these disability certificates were not included in disclosures from the respondent.
47As such, I have no reason to doubt the respondent both received and reviewed two valid disability certificates that evidenced entitlement no later than some point in October 2018.
48The respondent also maintains that confusion about the applicant’s employment status (i.e., was she self-employed or employed at the time of the accident?)—as well as unresolved discrepancies in earnings information submitted on forms by the applicant—delayed calculation of the IRB quantum.3 However, I find both these issues were resolved by October 5, 2018, as per the email exchange between Ms. Cheryl McDonald (claims adjuster) and applicant’s counsel.
49During that exchange, Ms. McDonald confirms her understanding that the applicant “was employed by her husband at the time of the accident.” So, this resolves the confusion on whether the applicant was self-employed or an employee.
50In that same exchange, counsel indicates “I have attached income tax records for (the applicant), including for 2016 that will assist you with quantum.” Although Mr. Iantomasi did not dispute the contents of the email—or that Ms. McDonald responded to the email—he testified that no tax returns were shared between the applicant and the respondent, and could not confirm tax records were attached to the October 2018 email.
51To me, the documentary evidence indicates, on a balance of probabilities, that Ms. McDonald had the tax records—even though she does not say so either way. Otherwise, why would the insurer then seek to obtain an accountant to proceed with an IRB calculation if both parties agreed the previous income information supplied by the applicant was discrepant? When considered in context, Ms. McDonald’s reply makes the most sense if she had received the tax records, as she indicated the only things left to determine the IRB issue were the disability certificate and the IRB calculations (i.e., the tax records were in hand to perform the calculations and resolve the income discrepancies).
52In short, the applicant has shown that her disability certificate, employment status, and financial information needed to calculate quantum—the only reasons put forward as to why the applicant’s pre-104 IRB was delayed—were resolved by the end of October 2018, at the latest. Mr. Iantomasi testified the insurer paid out the entirety of the applicant’s pre-104 IRB, with interest, about two weeks before the hearing. I estimate this to be on or about November 21, 2022, which is roughly four years since October 2018 when the applicant had resolved all outstanding information required to pay the IRB. This amount of time—coupled with Mr. Iantomasi’s testimony that the log notes contain no further entries requesting more information on pre-104 IRB entitlement after October 5, 2018—constitutes, in my opinion, an unreasonably withheld or delayed payment of benefits by the insurer.
53The insurer is therefore liable to pay an award under Section 10 of Regulation 664. In terms of assessing the value of the award, I find the respondent was imprudent in its handling of the pre-104 payment, in that it did not show due care for the consequences of withholding payment of the IRB. The duration of the non-payment period—about four years—is an aggravating factor. But I do not believe this imprudence was owing to any maliciousness or bad faith intentions on the part of the insurer. Rather the evidence here supports an extended period of inadvertently poor case management that resulted partly from a lack of due care and attention, and partly due to adjuster continuity issues. That the IRB payment was eventually made (with interest) is also a mitigating factor. Taken in totality, these factors persuade me to order an award of 20 per cent on the total pre-104 benefit paid plus interest.
Post-104 period
54I decline to order an award in relation to the post-104 IRB payments. Although I find the applicant is indeed entitled to an IRB for this period, I am not convinced the respondent’s failure to pay, on this basis, was unreasonable because it is well-settled that an award should not be ordered simply because an adjudicator determines an insurer made an incorrect decision. As well, payment of pre-104 IRB does not inform he applicant’s eligibility for post-104 benefits because the entitlement test is different.
55Further, the respondent is entitled to rely on the reports of its expert assessors when evaluating entitlement to a benefit, regardless of whether the applicant finds that report to be “highly problematic (with) no reasoning or rational (sic) for the conclusions reached.” I do not agree the discrepancy posed by Dr. Habib’s disability certificate was resolved such that the insurer ought to have reconsidered post-104 IRB payments. In fact, the applicant’s submissions on the award include no references to an amended disability certificate in evidence. And while I acknowledge the “overarching failures” argued by the applicant, I did not find those concerns to be relevant to deciding whether a payment is unreasonably withheld or delayed. Rather, these would be the types of factors to help inform the value of the award, should it be ordered.
Interest
56As such, the applicant has not proven the respondent is liable to pay an award for unreasonably withheld or delayed post-104 IRB payments.
57I find interest is owing on the portion of the post-104 IRB that has not been paid to the applicant.
ORDER
58I find the applicant has met her burden-of-proof on all issues in dispute—save the post-104 IRB award—and make the following orders:
a. The respondent shall pay the applicant an IRB of $185.00 per week from February 8, 2019, to date and ongoing, plus interest applicable to the date of the hearing.
b. The respondent shall pay the applicant an award of 20 per cent of the total pre-104 IRB paid, inclusive of interest.
Released: August 10, 2023
Michael Beauchesne
Adjudicator