Citation: Ahmadpour v. Intact Insurance, 2025 ONLAT 23-000467/AABS

Licence Appeal Tribunal File Number: 23-000467/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:

Mitra Ahmadpour Applicant

and

Intact Insurance Company Respondent

DECISION

ADJUDICATOR: John Mazzilli

APPEARANCES:

For the Applicant: Shahram Bahamdi, Counsel Adesina C John, Paralegal

For the Respondent: Shivani Mehta, Counsel

HEARD: By way of written submissions

OVERVIEW

1Mitra Ahmadpour, (the “applicant”) was involved in an automobile accident on March 30, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by (the “respondent”), Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to an Income Replacement Benefit (“IRB”) in the amount of $147.66/week from February 17, 2021, to March 29, 2021?

ii. Is the applicant entitled to a post -104 IRB in the amount of $185.00/week from March 30, 2021, and ongoing?

iii. Is the applicant entitled to interest?

3In her written submissions, the applicant claims entitlement to a post-104 IRB in the amount of $185.00/week from March 30, 2021, to September 30, 2023. For the purposes of this decision, I will consider the entitlement period of the post -104 IRB to be from March 30, 2021, to September 30, 2023.

RESULT

4The applicant is not entitled to an IRB in the amount of $147.66/week from February 17, 2021, to March 29, 2021.

5The applicant is not entitled to a post-104 IRB in the amount of $185.00/week from March 30, 2021, to September 30, 2023.

6Since the benefits are not payable, interest is not owing.

ANALYSIS

Is the applicant entitled to a pre-104 IRB from February 18, 2021, to March 29, 2021, in the amount of $147.66/week?

7I find that the applicant is not entitled to an IRB in the amount of $147.66/week from February 18, 2021, to March 29, 2021.

8To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be 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 employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

9The applicant received an IRB from April 6, 2019, up to February 17, 2021, in the amount of $147.66 per week.

10The applicant submits that she was an Uber driver at the time of accident and has not been able to return to her employment because of her physical and psychological impairments from the accident. The applicant relies on an application for accident benefits, OCF-1; an OCF-10 for the election of an IRB dated June 6, 2019; and a disability certificate OCF-3 dated April 29, 2019.

11The applicant submits that the insurer’s s. 44 assessments, which form the basis of the stoppage of the IRB in a letter dated January 28, 2021, should be invalid as the findings are inconclusive based on the insurer’s functional abilities evaluation (“FAE”) conducted by Dr. Holland, Chiropractor. The applicant submits that Dr. Hollands functional abilities evaluation supports her claim to entitlement to the IRB because Dr. Holland indicated that the applicant demonstrated deficits as compared with her pre-MVA job demands as an Uber driver.

12The applicant further submits that the insurer has not given proper notice of termination of the IRB in accordance with s. 37(4) and (6) of the Schedule, and, as such, the applicant is entitled to the IRB, both pre- and post-104, until such proper notice is given. The applicant further alleges that the respondent has paid an IRB to the applicant past the disputed period of February 18, 2021.

13The respondent argues that the applicant can return to her duties as an Uber driver and relies on the insurer’s examination reports from Dr. Moddel, neurologist, Dr. Syed, psychologist, Dr. Nesterenko, general practitioner, and Dr. Holland, chiropractor. They argue that the applicant has not submitted any medical evidence to support her ongoing entitlement to the IRB. Further, the respondent argues that the applicant was receiving CERB in 2020 and 2021 (for a total of $22,800.00), and she applied for it on the basis that she was ready, able, and willing to work. To support their position on the applicant’s claim, the respondent relies on the applicant’s tax returns. The respondent further submits that they made an overpayment of IRB to the applicant in error in the amount of $5,187.77.

14The applicant relies on an OCF-3 submitted by Salmaz Zanjan, chiropractor, dated April 29, 2019. This OCF-3 lists the applicant’s predominant injuries in order of significance to be: myalgia, muscle strain, joint pain, tension headaches, unspecified injury to muscle and tendon of the neck, muscle and tendon of the head, neck, sprain and strain of the cervical spine, thoracic spine, lumbar spine, sacroiliac joint, sprain and strain of the shoulder joint, injury of muscle and tendon of the biceps, radiculopathy, sleep disorder, nervousness, fatigue, nightmares and injury of muscle tendon ant shoulder and upper arm level.

15Despite the injuries reported on the OCF-3, the chiropractor opined that the anticipated duration of the injuries should last between nine and twelve weeks. Unfortunately, I am not pointed to any corroborating medical evidence produced by the applicant’s own medical providers in the applicant’s hearing brief to support the claims of the injuries sustained or any progress reports, clinical notes and records or medical imaging from medical professionals to support her claim.

16The applicant submits that she is unable to return to work as an Uber driver because of unresolved fear and phobia of driving and to pain associated with her hands due to carpal tunnel syndrome.

17The applicant, in her written submissions, takes exception to the termination of the IRB based on Dr. Holland’s FAE report, and argues that the multidisciplinary team of s. 44 assessors did not consider the findings of the FAE report in their conclusions. Further the applicant does not agree with the findings of the respondent’s psychological assessor, Dr. Syed.

18The respondent’s termination of the IRB was based on a multidisciplinary approach that involved the medical assessment of the applicant followed by reports from Dr. Holland, chiropractor, Dr. Nesterenko, general practitioner, Dr. Syed, psychologist, and Dr. Moddel neurologist. The corresponding reports from these assessments dated January 18, 2021, were conducted in accordance with s. 37 of the Schedule.

19Upon review of the medical reports, it is clear to me that, contrary to the applicant’s submissions, Dr. Nesterenko did review and consider Dr. Holland’s FAE. Dr. Nesterenko noted Dr. Holland’s assessment of the applicant to be invalid because of the applicant’s overall performance. Dr. Holland reports that the applicant demonstrated an unreliable effort in this evaluation and that the applicant declined and terminated multiple tests prior to demonstrating objective signs of exertion suggests that a reasonable effort was not given during this assessment. The applicant did not submit any medical evidence that would contradict or refute Dr. Nesterenko’s conclusions or Dr. Holland’s assessment.

20Dr. Nesterenko diagnosed the applicant with cervical sprain/strain, thoracolumbar spine sprain/strain and bilateral shoulder sprain. Dr. Moddel did not find any evidence of neurological Sequalae as a result of the accident but noted that the applicant was diagnosed with bilateral carpal tunnel syndrome, however it was not caused by the accident.

21Dr. Nesterenko also noted that the applicant did not demonstrate any ongoing, objective musculoskeletal impairment attributable to the accident. Dr. Nesterenko further noted that the applicant reported “electric shock” and numbness in her hands and bilateral wrist in her report, however the applicant did not report those injuries to her when she was previously seen by the assessor on July 24, 2019.

22In the absence of any compelling medical evidence to the contrary from the applicant, I accept Dr. Nesterenko’s and Dr. Moddel’s conclusion that, based on reasonable medical certainty, the applicant’s hand and wrist complaints associated with carpal tunnel are not considered related to the subject motor vehicle accident.

23I also accept both Dr. Nesterenko and Dr. Moddel’s conclusions that the applicant can resume the essential and non-essential tasks of her pre-accident employment as an Uber driver because there are no neurological sequalae or any objective musculoskeletal impairment attributable to the accident.

24The applicant submits that her psychological impairments of PTSD and phobia of driving or being a passenger resulting from the accident have not resolved, and she relies on an OCF-18 dated May 31, 2021, submitted by her treating psychologist Dr. Sadeghi, and produced by the applicant in her reply to submissions. The applicant argues that Dr. Sadeghi clearly opined that the applicant’s accident-related impairments affect her ability to carry out her task of employment.

25The identified line items of the OCF-18 are psychotherapy, medical notes and records/planning services, treatment review, treatment review and discharge report, feedback interview, completion of assessment and interpretation services. This OCF-18 was denied by the insurer on August 25, 2021; however, the OCF-18 was not signed by either Dr. Sadeghi or the applicant.

26The respondent submits that based on the findings of their s.44 report by Dr. Syed dated January 28, 2021, the applicant can return to her pre-accident employment as an Uber driver. They further argue that Dr. Syed’s testing and report are consistent with the applicant’s own testing and psychological progress reports by the applicant’s treating psychologist, Dr. Sadeghi, diagnosed he applicant as having adjustment disorder. They argue that both psychologists conclude that the applicant does not meet the criteria for a diagnosis of PTSD or specific phobia.

27The applicant’s OCF-18 submitted by Dr. Sadeghi listed her complaints as, (in order of significance), undifferentiated somatoform disorder, adjustment disorders, mixed anxiety and depressive disorder, port traumatic stress disorder and specific (isolated) phobias. The OCF-18 states that the applicant’s impairments will affect the applicant’s tasks of employment. However, the goals of the treatment plan are identified to be a return to activities of normal living, not return to pre-accident work activities or return to modified work. Furthermore, neither the applicant nor Dr. Sadeghi signed the OCF-18 that was denied by the insurer.

28I accepted the respondent’s s.44 report by Dr. Syed to be the most credible psychological evidence and placed full weight to Dr. Syed’s report. Dr. Syed consistently referenced the applicant’s own psychologist Dr. Sadeghi’s progress reports from Dr. Sadeghi’s finding from the Beck Anxiety Inventory, Beck Depression Inventory, and the PTSD checklist. All the tests administered to the applicant fell within the normal to no anxiety or minimal to no depression ranges, and Dr. Sadeghi noted that the applicant’s scores in the PTSD checklist do not meet the criteria for PTSD.

29Although Dr. Sadeghi did not give an opinion on the IRB or the applicant’s ability to return to work, he concluded that the applicant’s fear of cars is not severe enough to be considered as an intense, persistent fear or phobia of driving. I accepted Dr. Syed’s conclusions that are consistent with the applicant’s own psychologist Dr. Sadeghi, that, the applicant does not have a psychological condition that would preclude her from performing the essential tasks of her pre-accident employment.

30The onus is on the applicant to prove entitlement to the IRB, and, in this case, the applicant did not support their entitlement but rather asked the Tribunal to make a finding contrary to the respondent’s medical evidence. I did analyse and consider the respondent’s supportive medical evidence regarding there termination of the IRB, and I also considered the applicants concerns with these reports, however on balance the respondent’s medical evidence is supportive of the termination of the applicant’s IRB.

31On a balance of probabilities, the applicant has not demonstrated that she suffers from a substantial inability to perform the essential tasks of her employment during the disputed period.

Canada Emergency Response Benefit (“CERB”) and Canada Recovery Benefit (“CRB”)

32The applicant in her reply submissions submits that the disability test cannot be addressed without a medical examination and drawing conclusions based on reasonings or factors such as the insured person applying for and receiving CERB and CRB, or their participation in a full-time educational program.

33The respondent argues that the applicant applied for and received the Canada Emergency Response Benefit (CERB) in 2020, and the Canada Recovery Benefit (CRB) in 2020 and 2021, as per her Income Tax Returns and CERB File.

34In order to have qualified for the CERB which was available from March 15 to September 26, 2020, the applicant had to declare to the CRA in her application one of the following: (a) that her work hours were reduced by COVID-19, (b) that she stopped working because of COVID-19, (c) that she was unable to work because of COVID-19, or (d) that she was paid EI regular benefits for at least one week of benefits since December 29, 2019.

35The respondent argues that the applicant’s Income tax returns confirm that no EI was paid in 2019 and thus criteria (d) would not apply. Therefore, the respondent submits that the applicant declared to the CRA that she was not employed for reasons related to COVID-19. Similarly, to be eligible for the CRB, which was available between September 27, 2020, and October 23, 2021, the applicant would have had to declare to the CRA that she was not employed for reasons related to COVID-19 (or had reduced income due to COVID-19), and that she was seeking work during the period she claimed.

36Upon my review of the applicant’s tax returns, it is apparent that the applicant did collect CERB in 2020 and the CRB in 2020 and 2021. As the applicant did not make the application for these benefits due to (d) above, I find on balance that she was not employed due to reasons related to COVID-19.

Is the applicant entitled to a post-104 IRB from March 30, 2021, to September 30, 2023, in the amount of $185.00/week?

37The applicant is not entitled to a post 104-IRB in the amount of $185.00/week from March 30, 2021, to September 30, 2023.

38Section 6(2)(b) of the Schedule lays out the eligibility criteria for an IRB after 104 weeks of disability. This requires the applicant to show she suffers, because of the accident, a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.

39The applicant submits that the respondent did not fulfil their obligation to assess the applicant in accordance with s. 37(1) for the complete inability criterion under s. 6(2)(b), and she relies on s. 37(2)(c) and submits that the IRB remains in effect until the respondent complies with s. 37(4) and s. 37(6) of the Schedule. The applicant further submits that the respondent has paid $5,187.77 above the IRB requirements and suggests that this is because the respondent has paid an IRB past February 17, 2021, for an additional 39.96 weeks.

40The respondent argues that the applicant does not meet the entitlement for a pre-104 IRB as of the date of their s. 44 assessments and therefore does not meet the more stringent test of a complete inability to engage in any employment of self employment for which she is reasonable suited by education, training, or experience. The respondent argues that the applicant participated in full time education to become a medical esthetician commencing September 2020 until she commenced employment in this field in October 2023. The respondent further argues that they have complied with s.37 of the Schedule and that the overpayment in IRBs was made in error in May of 2020.

Overpayment of the IRB

41I find that the respondent’s overpayment of the IRB was in error and that the overpayment does not extend the entitlement of the applicants IRB beyond February 17, 2021.

42The applicant submits that the respondent continued to pay the applicant an IRB beyond February 17, 2021, and therefore renders the respondent’s denial letter of January 28, 2021, invalid. The applicant submits that the respondent paid a total of $20,328.34 in IRB payments to the applicant which would suggest payments were made for 137.67 weeks, which extends 39.96 weeks beyond February 17, 2021.

43The respondent argues that an overpayment was made in error with respect to the IRB in the amount of $5,187.77. The respondent argues that it did not extend the payment of the IRB by 39.96 weeks beyond February 17, 2021, and that the last payment made to the applicant in relation to the IRB was on January 15, 2021.

44The respondent made an overpayment of the IRB in the amount of $5,187.77 as the log notes evidence this error and an attempt by the respondent was made to arrange a re-payment plan for the monies. The respondent on May 12, 2020, advised the applicant of the overpayment and on May 25, 2020, the applicant confirmed that she had deposited the overpayment. No details of a repayment plan were provided to me, or if the overpayment had been returned to the respondent by the applicant. However, it is clear to me that the overpayment of the IRB was never intended to be perceived as an extension of entitlement to the IRB beyond February 17, 2021.

45I find on a balance of probabilities that the respondent’s overpayment of the IRB was in error and that the overpayment does not extend the entitlement of the applicant’s IRB beyond February 17, 2021, and as such the respondent’s denial letter dated January 28, 2021, is valid.

Applicability of Section 37 of the Schedule

46The applicant submits that respondent ought to have scrutinized the findings and opinions of their medical assessors. They submit that the respondent’s notice of termination of the IRB contained insufficient medical reasons for the termination, as Dr. Holland’s FAE report was not included in the denial letter, and, as such, the respondent did not comply with s. 37(4) and s. 37(6) of the Schedule.

47The respondent submits that Dr. Holland’s FAE report was all contained in the other assessors’ reports and considered in their findings, and that Dr. Holland’s FAE report does not specifically provide an opinion for the disability test for the IRB. They argue that they assessed the applicant in accordance with s.37(1)(b) and, upon receipt of the s.44 reports, a determination was made based on the reports that the applicant is no longer entitled to the IRB in accordance with s.37(2)(c).

48Section 37 of the Schedule addresses the determination of continuing entitlement to specified benefits. Section 37(1)(b) reads that: “If an insurer wishes to determine if an insured person is still entitled to a specified benefit, the insurer may, but not more often than is reasonably necessary notify the insured person that the insurer requires an examination under section 44.” Section 37(2)(c) states that an insurer shall not discontinue paying a specified benefit to an insured unless the insurer has received the report of the examination under s. 44 and has determined that the insured person is no longer entitled to the benefit.

49I find that the respondent has fulfilled their obligation under s. 37(1)(b) and s. 37(2)(c). This is evidenced by the numerous multidisciplinary assessments that the respondent arranged to determine ongoing entitlement to the IRB for the applicant, which guided their decision to terminate the IRB. Furthermore, the applicant ought to have produced her own medical evidence in response to the respondent’s medical evidence if the applicant did not agree with the findings of the respondent’s medical assessors.

50Section 37(4) states that, if the insurer determines that an insured person is not entitled or is no longer entitled to receive a specified benefit on any one or more grounds set out in subsection (2), the insurer shall advise the insured person of its determination and the medical and any other reasons for its determination.

51Section 37(6) states that:

i. Within 10 business days after receiving the report of an examination under section 44, the insurer shall provide the insured person with a notice of determination setting out,

(a) the specified benefits the insurer agrees to pay.

(b) the specified benefits the insurer refuses to pay.

(c) the medical and any other reasons for the insurer’s decision; and

(d) if the insurer determines that the insured person is not entitled to a specified benefit, the date that payment of the benefit will be stopped.

52I find that the respondent acted in accordance with s.37(4) and s.37(6). On January 28, 2021, exactly 10 days from receipt of the medical reports and in accordance with s.37(6), the respondent sent a letter to the applicant advising her that, based on the s.44 reports from Dr. Moddel, neurologist, Dr. Syed, psychologist and Dr. Nesterenko, general practitioner, she would no longer be eligible to receive the IRB. The applicant argued that the letter did not include Dr. Holland’s FAE report on the subject letter, however, as already established, the FAE report does not give an opinion on entitlement to the IRB. Furthermore, the respondent attached the medical reports to the letter for the applicant to review, this to me is more than sufficient medical reasons and, therefore, I find that the respondent acted in accordance with s.37(4) and (6).

53I agree with the respondent and find that the applicant is not entitled to a post-104 IRB. The applicant did not submit compelling medical evidence for the entitlement of IRB for either pre-104 and post-104. Furthermore, I find that her ability to successfully complete her medical esthetician education and be successful in obtaining employment in this field satisfies me that the applicant does not suffer from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.

54The applicant has relied on the Tribunal to disqualify the respondent’s medical evidence in her claim to a post 104-IRB rather than accepting that the onus is on the applicant to prove entitlement to the IRB. I find that the respondent fulfilled their procedural obligations in accordance with the Schedule.

55The applicant is not entitled to a post -104 IRB in the amount of $185.00/week from March 30, 2021, to September 30, 2023.

ORDER

56It is ordered that:

i. The applicant is not entitled to an IRB in the amount of $147.66/week from February 17, 2021, to March 29, 2021.

ii. The applicant is not entitled to an IRB in the amount of $185.00/week from March 30, 2021, to September 30, 2023.

iii. Since the benefits are not payable, interest is not payable.

iv. The application is dismissed.