Citation: Bekuschew v. CAA Insurance Company, 2025 ONLAT 24-015437/AABS

Licence Appeal Tribunal File Number: 24-015437/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:

Sharon Bekuschew

Applicant

and

CAA Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tami Cogan

APPEARANCES:

For the Applicant:

Nick de Koning, Counsel Alexander David, Counsel

For the Respondent:

Stanislav Bodrov, Counsel

HEARD by Videoconference:

September 29, October 1, 2, 3, 2025

1Sharon Bekuschew, the applicant, was involved in an automobile accident on September 22, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, CAA Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided are:

i. Is the applicant entitled to an income replacement benefit in the amount of $600.00 per week from October 1, 2024 to present?

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

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3After considering the parties submissions and evidence I find the following:

i. The applicant is not entitled to an income replacement benefit in the amount of $600.00 per week from October 1, 2024 to present.

ii. The applicant is not entitled to interest on any overdue payment of benefits.

iii. The respondent is not liable to pay an award under s. 10 of Reg. 664.

ANALYSIS

Income Replacement Benefit (IRB)

4I find the applicant has not established that she is entitled to IRB.

5The parties agree the applicant was entitled to and received IRB during the first two years after the accident. The benefit was stopped when she returned to work on partial duties in October 2022. The parties also agree the applicant is no longer capable of her pre-accident employment as a personal support worker (PSW). The period of time in dispute is from October 1, 2024 to present. I find that since the accident occurred on September 22, 2020, the post 104-week IRB period began on September 20, 2022. Therefore, I must determine if the applicant meets the test for post 104-weeks entitlement.

Post-104-Weeks IRB

6An insurer shall pay a post-104-week IRB under s. 6 of the Schedule to an insured person who sustains an impairment as a result of an accident, if the applicant demonstrates on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

7The applicant submits that two years after the accident, she attempted to return to work as a PSW. Her duties were modified, as were the length of her shifts. The attempt was unsuccessful because she was unable to sustain the cognitive and physical demands of the position. The applicant then accepted a position as a restorative aide, however, she was unable to sustain the demands of this position, and she argues that this proves that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. Further, the applicant submits she is not suitable for re-training because of her cognitive deficits.

8The respondent submits that the applicant was successful in the position of a restorative aide, as demonstrated by her working additional shifts and being offered a promotion, proving she is capable to engage in employment for which she is reasonably suited by education, training and experience. The respondent submits that the reason the applicant left her position was unrelated to the injuries she suffered as a result of the accident. The respondent also relies on a letter of reference from the applicant’s employer dated April 15, 2024, which indicates she had been employed since September 22, 2023, had been working a minimum of 45 hours biweekly, and frequently worked additional shifts. The respondent argues this is evidence that the applicant was managing well in her employment more than three years post-accident. Further, the respondent submits that the applicant has completed a certificate in palliative care, comprised of ten courses and exams, which demonstrates her capacity for (re-) training.

9The applicant testified that after high school she was educated as a healthcare aide, and was qualified to work in retirement homes, community living, and long-term care facilities. Due to a legislative requirement in 2014, she completed a PSW certificate at Medex College of Healthcare, and continued her employment as a PSW. The applicant also obtained a certificate in PSW palliative care dated March 20, 2024. The applicant has worked in these capacities since 1993. The essential tasks of the PSW positions were providing care to residents: feeding, bathing, toileting, dressing, transfers, and charting. At the time of the accident, the applicant was working part-time, with a guarantee of three shifts of 7.75 hours each, per week, and was able to fully meet the requirements of the position. She testified that as a result of the accident-related injuries, she continues to suffer with depression and emotional dysregulation, memory and cognitive deficits, including difficulty communicating. Her physical treatment includes chiropractic and massage therapy, injections in her knee, and Botox injections for headaches.

10The applicant testified that she attended chiropractic and massage treatment before the accident as maintenance due to the heavy physical demands of her work. The respondent directed me to the treatment records of Absolute Rehab from September - October 2019. Dr. David Allensen, chiropractor, recorded the applicant’s complaints as pain in her neck, shoulders, upper back, low back, and carpal tunnel pain ongoing for many years. The pain severity was rated as 8/10 intermittently, aching with stabbing pain, with the pain being worse in the morning. She refers to “damage” in her early 30’s and hasn’t been right since. The applicant testified that she was functioning well and meeting the full demands of her work before the accident, even with these physical complaints.

11The applicant testified that in August 2022 she attempted a return to work as a PSW with her pre-accident employer, in Kitchener, although she was then living in Goderich and travelled approximately 1 hour to and from work. The position was modified in tasks as well as shift length. After approximately one year, she was asked to resign. She testified she struggled with the cognitive demands of the work and was concerned for the patients’ safety and that she is unable to perform the physical tasks of any employment due to headaches, pain in her neck and shoulder.

12I was directed to the clinical notes and records of Dr. Allensen at Live Well Health & Physiotherapy, where the applicant attended for treatment. I find that between September 8, 2022, and January 17, 2023, the records corroborate the applicant’s testimony, that she struggles from a cognitive standpoint, particularly in decision making and multi-tasking as a PSW. However, she repeatedly reported to Dr. Allensen that she feels able to do her job physically, which contradicts the applicant’s testimony.

13The applicant testified that she stopped working as a PSW in the fall of 2023. The parties also agree the applicant is no longer capable of her pre-accident employment as a PSW.

14In September 2023, she was employed as a restorative aide; the work was lighter because she was tasked with fewer residents, they were higher functioning than patients she served during her past employment as a PSW, and the charting requirements were lighter. She testified that as a restorative aide she did work fulltime hours, 8-hour shifts, and sometimes overtime hours, and shifts on scheduled days off.

15The September 2023 clinical notes and records of Dr. Poelman, chiropractor, indicate that the applicant reported working a lot, and her short-term memory recall was improving. The applicant had started working at Maitland Manor in Goderich, while continuing to work in Kitchener as a PSW on modified duties. The applicant reported working most days while balancing two shift-work positions. The clinical note of October 16, 2023, reports the applicant is hoping to be full time at Maitland Manor. In November the applicant reported she quit her job in Kitchener, and was working as a restorative aide at Maitland Manor, up to 11 eight-hour shifts every 2 weeks. The clinical note of February 15, 2024, indicates the applicant is finding a lot of improvement in her symptoms since she stopped working in Kitchener. The clinical note of Dr. Tricia Denunzio, chiropractor, on June 17, 2024, indicated that the applicant reported her back-to-work is going well. On August 12, 2024, the applicant reported an increase in her activity at home, including outdoor work and cycling. Throughout the records there is mention of how the applicant has supported her husband and her in-laws through medical issues, as well as the passing of her father.

16I place significant weight on the clinical notes and records of Dr. Poelman and the Goderich Chiropractic Clinic because they are made in the course of treatment, without the patient being cognizant of the record keeping, or being evaluated, which exists in a formal assessment environment. I note that where there were records of complaints in 2022 and 2023 regarding the physical and cognitive demands of her previous PSW position, there are no records to support ongoing complaints of being unable to meet the physical or cognitive demands of her restorative aide position. Also, the letter of employment from Maitland Manor dated April 15, 2024, corroborates that the applicant was working as a restorative aide, working overtime, and functioning well in her role. I find that although the applicant may have been struggling with the demands of her PSW position in 2023, she was meeting the demands of the restorative aide position for approximately 10 months in 2023 - 2024.

17Also, in support of the applicant’s ability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience is a letter dated July 10, 2024, from Maitland Manor, in which the applicant was offered a full-time position as resident and staff services coordinator. The applicant testified that the position required far less physical demands and more administrative responsibilities that she was already familiar with. She did not require retraining. The applicant did not testify to any difficulty in her role as a resident and staff services coordinator. However, the position was later rescinded during her probationary period, though the letter dated October 2, 2024, indicates this was due to restructuring and not due to her job performance. The applicant was returned to her previous role as a restorative aide. The applicant testified that she was concerned she would not be able to meet the physical demands of the position.

18Within a month of returning to the restorative aide position, the applicant stopped working. The applicant testified that she had difficulty with the increased physical demands of the position. However, I have not been directed to corroborating evidence that she was unable to meet the demands of her position. She left work when she contracted Norwalk virus, a chest infection and a sinus infection, all of which required treatment by antibiotics. The applicant provided the employer with a medical note from her family physician Dr. Hany Milio, dated October 30, 2024. The clinical notes and records of Dr. Poelman support that the applicant was being treated for these infections into December 2024. She also testified that while she was off work recovering from these illnesses, her supervisor began to harass her for being off work, and in November 2024 the applicant requested legal assistance to address the issues, resulting in a cease-and-desist letter. To date she has not returned to work. I find that I have not heard persuasive evidence that the applicant stopped working due to her accident-related injuries.

19I heard testimony from Dr. Michel Rathbone, neurologist, who completed a neurological assessment of the applicant on May 13, 2024, with the report dated August 4, 2024. Dr. Rathbone testified that the applicant has difficulty remembering and that charting would be a difficult task for her.

20I find Dr. Rathbone’s evidence to be less persuasive because he does not mention the applicant’s having any recall issues during the interview or examination. Also, the applicant testified that she was able to do the lighter charting tasks as a restorative aide, which contradicts Dr. Rathbone’s conclusion.

21Dr. Rathbone testified that the applicant is not suitable for employment as a PSW. However, he did opine that she was able to do other work, if she was already familiar with it, because it is typical for someone to remember past skills but have difficulty learning new skills as a result of a concussion. Dr. Rathbone opined the applicant is not suitable for re-training.

22I heard testimony from Dr. Andrew Kertesz, neurologist, who conduced a neurology assessment for the post 104-weeks IRB claim, on November 2, 2022. He testified that the applicant’s main complaints were cognitive: difficulty focusing; concentrating; and memory disturbances, and physical: neck pain; and headaches. The results of his assessment were no objective neurological findings and no cognitive disturbances.

23I prefer Dr. Kertesz’s opinion because it is grounded in his direct observations. He found the applicant to be coherent, was a good historian, and concentrated throughout the assessment. It was significant to Dr. Kertesz that the applicant did not have difficulty describing her cognitive challenges, which in his opinion demonstrates that her cognitive impairment is very mild. At the time of the assessment, the applicant’s physical exam was normal from a neurological perspective. Dr. Kertesz opined the applicant’s condition is improving, and she does not have a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

24I heard testimony of Dr. Philip Miller, psychologist, who conducted a psychovocational assessment of the applicant on May 21, 2024, with the report dated July 12, 2024. Dr. Miller references the applicant’s need to take naps after her shifts, and recoup on her days off. He testified that the restorative aide position was not sustainable because, after work, she would be unable to participate in life. He recommended the applicant to reduce her work hours. Dr. Miller also opined that the applicant would be irritable, would lose her temper and would not be able to work fast enough, or multitask.

25I place less weight on Dr. Miller’s opinion because he testified that he was unaware that she had been working overtime and additional shifts as a restorative aide, or that she had received a letter of recommendation that indicated she was fulfilling her responsibilities well. He testified that this information would affect his conclusion. I find that without this additional information, Dr. Miller’s opinion is limited in accuracy.

26I heard testimony from Dr. Johan Reis, psychologist, who conducted psychological assessments on January 19, 2022, November 23, 2022, November 15, 2023, and April 2, 2025. Dr. Reis diagnosed the applicant with a major depressive disorder in January of 2022, but opined that her condition had improved and was in partial remission in November 2022. The applicant was also diagnosed with other specified trauma – and stressor-related disorder (persistent response to trauma with PTSD-like symptoms), but did not qualify under the DSM-5-TR for PTSD. He testified that the applicant’s PTSD symptoms did not affect her ability to function. Dr. Reis’ opinion in 2022 that the applicant had not suffered a complete inability to engage in any employment for which she is reasonably suited was based on the applicant’s report that she had returned to her previous employment and that from a psychological perspective, she had been managing the role. In his 2025 report, Dr. Reis documented the applicant’s physical complaints as having worsened and her post-concussive symptoms had remained the same as in 2023. Dr. Reis’ 2025 assessment reports indicate the applicant reported a progressive improvement in her mood.

27I find Dr. Reis’ opinion persuasive because he testified that the applicant does suffer from depression, however, based on his assessment, her depression does not rise to a level of an impairment. The diagnosis in 2025 was unchanged from 2022. Similarly, Dr. Reis’ opinion that the applicant is suitable for employment was also unchanged. He did acknowledge that the applicant was not working and was on medical leave, however, because she did not attribute her leave to psychological factors, he maintained his conclusion.

28I was directed to the psychological treatment progress reports from Sean Shahrokhina, C. Psych., of Psychological Health Solutions, with reports dated April 27 and July 17, 2023. These reports document the applicant’s ongoing need for treatment. However, I note that the applicant continued to work throughout this period of time. I have also considered that throughout the chiropractic treatment records are references to the applicant supporting her spouse, in-laws, and her father during their health issues. Further, her father died in May of 2023, and she was dealing with his estate and burial. In the fall of 2024, her spouse had surgery pending, and into 2025 the applicant has been providing support to her in-laws who continue to live on their own. I note that there is reference in the chiropractic treatment records that the applicant was seeing a counsellor in late 2024 – 2025, after she stopped working, however, these records are not in evidence for my consideration.

29The applicant testified that she has chronic pain which contributes to her complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. She testified that her pain interferes with her sleep and her ability to perform daily tasks. The applicant testified that her sleep is greatly disturbed, and she now gets on average 5 hours each night, whereas before the accident she would get 9 – 10 hours of sleep each night. This causes her to have to nap everyday for up to 4 hours. Dr. Malalai Kamawi, chronic pain management specialist, saw the applicant on August 8, 2024, and recommended nerve block injections. Other recommendations were to increase physical activity, maintain good posture, use heat and ice, and work on balance and range of motion and slow stretches. There were medication trials suggested. I have not been directed to evidence that indicates the medications were trialed. Dr. Kamawi did note that the applicant’s communication skills, recent and remote memory, insight and judgment, affect and mood appeared within normal limits, and was able to follow commands and she was cooperative. Further, the applicant’s ranges of motion for head, neck, shoulders and lumbar spine were within normal limits, with mild tenderness in the lower spine, SI joints and glutes. Dr. Kamawi did not note any functional limitations. Dr. Kamawi did not follow-up with the applicant, but rather referred her back to her family physician’s care. I find Dr. Kamawi’s report does not support the applicant has an inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

30The applicant testified that she suffers from fatigue and needs to nap during the day, interfering with her ability to work. The clinical notes and records of Live Well Health & Physiotherapy of Amy Carere, physiotherapist, indicate that in 2021, the applicant was reporting the need for taking 30 minutes - 1.5 hour naps on a regular daily basis. Dr. Reis, in his 2025 report, noted the applicant’s complaint regarding sleep had significantly worsened, indicating that she only gets six to seven hours of sleep each night and requires two to three hour naps each day.

31The respondent directed me to a sleep study conducted in 2012 by Dr. Vivian El-Kholi, M.D., in which she provided a provisional diagnosis of terminal insomnia. I note the total sleep time recorded in 2012 was 5 hours and 7 minutes, which I find is similar to what the applicant reports she obtains now. The sleep study was re-done in 2024 by Dr. El-Kholi and the total sleep time recorded was 6 hours and 10 minutes with the use of a CPAP. Based on these two reports, I find the applicant’s sleep disturbance and resulting daytime fatigue is not as a result of the accident. I also note that the applicant testified she was functioning well and meeting the full demands of her work before the accident, unaffected by her sleep pattern. The applicant reported to Dr. Rathbone during a neurological assessment dated August 4, 2024, that now with the CPAP, she does not wake up at night and sleeps for 10 – 12 hours, although she does not feel rested.

32The applicant testified that as a result of the accident she suffers with vertigo, which affects her balance, on going. Subsequently, on December 19, 2020, the applicant fell at home which resulted in a broken nose and a trip to the hospital. She reported to Dr. Rathbone on May 13, 2024, that she continues to experience dizziness a few times a month and it will resolve if she sits down. On January 21, 2021, Dr. Allensen performed the Epley Maneuver, a treatment for vertigo. The applicant testified that it gave some relief.

33According to the clinical notes and records of Dr. Allensen, the applicant reported a huge improvement in her balance and feelings of being off balance; however, there are notes on January 28, 2021, that the vertigo worsened after an assessment with a vestibular test, but on February 3, 2021, she reported feeling less dizzy. The next mention of vertigo in the treatment records is three and a half years later. On August 21, 2024 she reported to Dr. Poelman that she has vertigo when she bends forward or tries to get out of bed, which started after a treatment two days previous. On August 26, 2024, the applicant reported the vertigo had resolved.

34Further, the applicant acknowledged that before the accident she had migraine headaches approximately six times a year and was prescribed medication for management. Post-accident she began receiving treatment of Botox injections, which she testified has reduced the severity and frequency of the headaches, but they continue on a weekly basis. I find that the applicant was experiencing vertigo and the headaches during the time period of September 2023 and October 2024, while she was working as a restorative aide. However, I am not persuaded that the applicant was unable to perform the essential tasks of her employment as a restorative aide because the employer not only offered her a promotion, but after a restructuring, they reinstated her in her former position.

35I heard testimony of Mr. Vincent Yip, physiotherapist, who conducted the Functional Abilities Evaluations (FAE) on November 18, 2022, and March 6, 2025. I find these reports persuasive because the results are consistent. The applicant performed within normal limits on all tests, with the exception of her balance when standing on foam with her eyes closed, in which she lost her balance within 1 – 4 seconds. Mr. Yip testified and noted in his report that good effort was exerted throughout the assessments and the results are considered to be an accurate reflection of the applicant’s capabilities. I note that the applicant rated her pain as being less or equal after each assessment, in comparison to before the assessment, with the exception of her headache in 2022, and her right knee in 2025. I accept these assessment results and find the applicant’s demonstrated abilities are within the Light-Medium Physical Demands Characteristic Level as opined by Mr. Yip.

36The vocational assessment results of Harleen Kaur on October 25, 2022, and Hagay Jalon on March 4, 2025, are remarkably similar. Both Ms. Kaur and Mr. Jalon relied on the FAE conducted by Mr. Yip. The Labour Market Surveys (LMS) identified occupations that align. They did vary in that Mr. Jalon’s LMS did not identify a nurses’ aide as a potential occupation, but rather a companion position; however, the essential tasks of these two classifications are similar. This is notable because the essential tasks closely align with a restorative aide position that the applicant took on in 2023. I find these results persuasive because of their internal consistency. I find that there are occupations for which the applicant is suitable by education, experience, and training.

37The assessors and treatment providers have all acknowledged that the symptoms the applicant is experiencing from her accident-related injuries are ongoing, the parties do not dispute this. The dispute arises as to whether the applicant suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. On the preponderance of evidence, I find 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.

38Although the applicant is a credible witness, and I am persuaded that she continues to suffer from accident-related injuries, I find that there are inconsistencies between her testimony and her reporting to her treatment providers regarding her ability to complete the tasks of her employment. The most persuasive evidence is the applicant’s work performance over 12 months in roles for which she is qualified by education, training and experience, which is evidence that she does not suffer a complete inability, as a result of her accident-related injuries.

39I find the applicant has not proven on a balance of probabilities that she is entitled to IRB benefit in the amount of $600.00 per week from October 1, 2024, to present.

Interest

40As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

41The respondent is not liable to an award under s.10 of Reg 664.

42The applicant sought an award under s. 10 of Reg. 664. Under s. 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.

43The applicant did not make submissions on the s.10 claim for an award.

44I find the applicant has not proven on the balance of probabilities that she is entitled to an award under s. 10 of Reg 664.

ORDER

45For the reasons above, I find: