Omar Rashid Omar v. Primmum Insurance Company, 2025 CanLII 129088

Omar v. Primmum Insurance Company

Citation: Omar v. Primmum Insurance Company, 2025 ONLAT 25-000775/AABS Licence Appeal Tribunal File Number: 25-000775/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:

Omar Rashid Omar

Applicant

and

Primmum Insurance Company

Respondent

DECISION

VICE-CHAIR:

Henry Harris

APPEARANCES:

For the Applicant:

Eli Jakubovic, Counsel

Bianca Zimperi, Counsel

For the Respondent:

Karen Klaiman, Counsel

Lyndsay Misevski, Paralegal

Heard by Videoconference:

September 16 and 17, 2025

OVERVIEW

1Omar Rashid Omar (the "applicant") was involved in an automobile accident on July 27, 2022, 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 Primmum Insurance Company (the "respondent"), 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 in the amount of $400.00 per week from August 18, 2023 to July 27, 2024?

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

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

3At the start of the hearing, the applicant withdrew issue 2 as listed in the case conference report and order dated May 29, 2025 (the "CCRO").

RESULT

4The applicant is entitled to an IRB in the amount of $400.00 per week from August 18, 2023 to July 27, 2024, plus interest.

5The applicant is not entitled to an award.

6The application is dismissed.

PROCEDURAL ISSUES

Respondent's request to make order subject to right to decline payment of benefits if respondent finds a material misrepresentation denied

7During the applicant's testimony, he indicated that prior to his employment as a café supervisor he worked for Uber. This was listed in the Application for Accident Benefits ("OCF-1") dated September 21, 2022 and entered into evidence by the applicant.

8The respondent raised as an issue that the OCF-1 entered into evidence differs from an earlier OCF-1 received by the respondent dated August 9, 2022. The respondent argued that such earlier OCF-1 did not list Uber as an employer. The respondent indicated that they would need to do an internal investigation after the hearing to review the two different OCF-1s and determine if there has been a material misrepresentation by the applicant. As such, the respondent requested that any order of the Tribunal at this hearing be subject to the respondent's right to decline payment of benefits on the basis of material misrepresentation after the respondent has completed its internal investigation.

9The applicant objected to this request, arguing that the OCF-1 that he entered into evidence was included in the applicant's document brief dated August 27, 2025 and previously provided to the respondent. As such, the applicant argued that this is not new information and that it not appropriate to raise this as an issue at the hearing. The applicant indicated that the respondent did not raise this as a preliminary issue, and that it is prejudicial to the applicant to now raise this as an issue at the hearing. The applicant suggested that if the respondent finds there to be an issue after it completes its investigation, it can bring a separate application to the Tribunal. Further, the applicant testified that the vehicle he was using for Uber was not the vehicle insured by the respondent, since the insured vehicle was too old to be used for driving Uber.

10I denied the respondent's request. The respondent received the applicant's document brief dated August 27, 2025 and had opportunity to review and raise any issues prior to the hearing. I find it would be prejudicial to the applicant to consider such restriction on the Tribunal's order at this stage, as it would undermine finality to the Tribunal's decision. In addition, the respondent can bring its own application on this issue at such time as it has completed its internal review, if it deems appropriate.

Applicant's request to exclude witness testimony denied

11During the testimony of the s. 44 assessor, Dr. Shahriar Moshiri, psychologist, Dr. Moshiri indicated that on the day prior to his testimony, he had emailed to the respondent the symptom validity raw test materials. The applicant raised as an objection that the raw test data had not been produced to him. The applicant submitted that such data was required to be produced per the CCRO. The applicant further submitted that this would be procedurally unfair for this information to be withheld from the applicant while the respondent has the information, as the applicant would be denied an opportunity to verify the information or challenge it in cross-examination. The applicant requested that the witness should be excluded from giving evidence at the hearing, or alternatively that an adverse inference be applied to this situation.

12The respondent objected to such request, arguing that it's counsel had not opened the email from Dr. Moshiri and was not aware of its contents. Dr. Moshiri explained that he was only asked to send his clinical notes and records. He was not asked to send raw data, and chose to send the materials on his own initiative as he thought it would be helpful to share with the parties at the hearing to explain his validity testing.

13I denied the applicant's request to exclude the witness from testifying. While the CCRO does not expressly include a request for raw data, it does include items such as rough notes, questionnaires completed by the applicant and correspondence received by the respondent from s. 44 assessors. To mitigate any potential prejudice to the applicant, the respondent will not lead evidence on direct examination as to raw data and validity testing. Although framed as a request to exclude the witness from testifying, I find that the substance of the issue was the exclusion of this data, which has been addressed by the respondent self-excluding any such evidence in direct examination of the witness.

ANALYSIS

The applicant is entitled to an IRB

14I find that the applicant is entitled to an IRB in the amount of $400.00 per week from August 18, 2023 to July 27, 2024, being the period within 104 weeks after the accident.

15To 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.

16At the time of the accident, the applicant was employed full-time as a café supervisor at a coffee shop called Dip 'N Dip Chocolate Café. The Employer's Confirmation Form ("OCF-2") dated August 17, 2022, describes the applicant's job and the essential tasks to include managing the café, supervising six employees, handling food and beverage orders, responsibility for inventory and dealing with customers.

17The applicant testified that he worked at least 40 hours per week as the café supervisor. He indicated he was responsible for opening the café and sometimes closing it. He testified that he was responsible for training and supervising employees, serving customers and preparing their orders. He was also responsible for receiving inventory of fresh produce on a weekly basis and dry powders on a monthly basis. He was required to take such inventory from the front of the café to the refrigerator and freezer located in the back, and that some of the inventory would weigh approximately 40 lbs. He was also responsible for cleaning and stocking the shelves, including soft drinks and water. The applicant testified that the position required standing for the entire shift, other than during his lunch break.

18The s. 44 insurer's examination ("IE") functional capacity evaluation report of Mr. Luigi Grimaldi, kinesiologist, dated August 10, 2023, indicates that the applicant worked seven to nine hours per day and five to six days per week as the café supervisor. He was responsible for managing a café, as well as performing stocking, cleaning, cashier and customer service tasks. Occasional lifting of items up to 44 lbs. was also noted in the report.

19Based on the OCF-2, the applicant's testimony and the IE report of Mr. Grimaldi, I find the essential tasks of the applicant's employment as a café supervisor to be frequent standing and walking, training and supervising employees, interacting with customers, reaching and lifting, as well as handling inventory deliveries of various sizes up to 44 lbs. on a weekly and monthly basis.

20The applicant testified that he was unable to continue working as a café supervisor after the accident. He indicated that the job required him to stand all day and to lift items, which he cannot do now due to pain. He explained that standing would cause him pain in his back, with a sharp pain extending through his right leg and foot. He also indicated that he could not lift his right arm following the accident, and he tries to compensate by using his left arm and hand. The applicant testified that prior to the accident he had no problem performing such physical tasks of the job.

21The Disability Certificate ("OCF-3") dated May 11, 2023 was prepared by Mr. Nicholas Guilder, physiotherapist at Hagersville Physiotherapy. It lists sprain/strain of the lumbar spine, knee and shoulder joint, as well as WAD II whiplash associated disorder, as a direct result of the accident. The OCF-3 indicates that he suffers a substantial inability to perform the essential tasks of his pre-accident employment and that the applicant has shown little to no improvement since starting treatment.

22The applicant relies on the October 2, 2023 medical report letter of his family doctor, Dr. Holtby Turner. Dr. Turner found that the applicant is still unable to perform the essential tasks of his pre-accident employment without experiencing some degree of pain and discomfort. If he were to return to work in his condition at the time of the assessment, he would be at risk for worsening his injuries and therefore would prolong his recovery time. Dr. Turner noted that the applicant sustained injuries to his neck, right shoulder and lower back from the accident, and that he has been experiencing constant pain in these areas which have limited his abilities to push, pull, lift, sit and stand.

23In addition, the applicant relies on the testimony and clinical notes and records ("CNRs") of Dr. Turner, covering the applicant's health pre-accident, and treatment post-accident through to 2024. Dr. Turner testified that the applicant has been a patient of his since October 2021, approximately one month after the applicant moved to Canada. He indicated the applicant was in good overall physical health before the accident, and that he was not treating him for any physical or mental health conditions pre-accident. Dr. Turner continued to treat the applicant post-accident.

24The applicant relies on the February 27, 2024 s. 25 orthopaedic assessment report of Dr. Alexander Rabinovich, orthopaedic surgeon. Dr. Rabinovich was of the opinion that the applicant sustained significant orthopaedic injuries to his neck and back as a result of the accident. His diagnoses included WAD II cervical strain and lumbo-sacral myofascial strain, as well as right shoulder contusion and biceps tendonitis. He found the applicant's condition to be chronic and his prognosis guarded.

25The applicant further relies on Mr. Grimaldi's IE functional capacity evaluation report. Mr. Grimaldi testified that he undertook functional abilities protocol testing on the applicant based on the physical demand characteristics ("PDC"), which Mr. Grimaldi classified as medium for the applicant's pre-accident job as a café supervisor. He found that the applicant demonstrated function at light PDC, below the medium PDC level required of the job. Mr. Grimaldi reported that the applicant had 13 consistent functional limitations in his ability to perform his pre-accident job, including 5 functional demands that were skipped or stopped by Mr. Grimaldi due to safety concerns.

26The respondent submits that the applicant has not met his onus of demonstrating that he meets the test for IRB. The respondent relies on the IE multidisciplinary reports dated August 10, 2023 of Dr. Sabrina Ming-Wai Tu, family medicine, Dr. Shahriar Moshiri, psychologist, and Mr. Grimaldi, kinesiologist. Dr. Tu and Dr. Moshiri concluded that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident. It further relies on the addendum report of Dr. Tu dated October 12, 2023, which confirms Dr. Tu's earlier findings.

27I find that the applicant has proven on a balance of probabilities that he suffers a substantial inability to perform his pre-accident employment for the following reasons.

28I find the medical evidence of Dr. Turner demonstrates ongoing impairments that are consistent with an inability to perform the essential tasks of a café supervisor. Dr. Turner testified that pre-accident the applicant was in good overall health. The testimony and CNRs of Dr. Turner corroborate the applicant's testimony of ongoing pain in his neck, right shoulder and lower back from the accident, which have limited his abilities to push, pull, lift, sit and stand.

29Further, Dr. Rabinovich's orthopaedic assessment found significant orthopaedic injuries sustained to the applicant's neck and back as a result of the accident, diagnosing WAD II cervical strain, lumbo-sacral myofascial strain, and right shoulder contusion and biceps tendonitis. He was of the view that such injuries are causing the applicant to suffer from daily pain with significant functional limitations. As well, Dr. Rabinovich examined the upper and lower extremities of the applicant, and found that there was no exaggeration of pain with light touch to these regions. Although Dr. Rabinovich does not address IRB, I find the report further supports the ongoing pain documented by Dr. Turner.

30In addition, I find Mr. Grimaldi's IE report to be persuasive in documenting functional limitations in the ability of the applicant to perform his pre-accident job. Mr. Grimaldi testified that the applicant gave a reliable effort rated at 91% in functional ability testing, noting that greater than 80% is considered a reliable effort. He explained that such scoring is based on measuring changes to the resting heart rate using a heart rate monitor. He then completed such testing using ARCON Methods-time Measurement (MTM) data to validate the physical demand characteristics for the applicant's pre-accident job as a café supervisor.

31Although the respondent relies on its IE multidisciplinary reports to deny the applicant's claim, I do not find the assessments of Dr. Tu or Dr. Moshiri to be persuasive.

32Dr. Tu found on her assessment of the applicant that there were no objective musculoskeletal impairments as a result of the accident, and concluded that the applicant does not suffer a substantial inability to perform the essential tasks of his employment. In her report and testimony, Dr. Tu indicated that the applicant presented as pain-focussed and pain limited throughout the assessment, demonstrating inconsistencies and inorganic findings in his presentation. As an example, she informally observed him being able to get off the assessment bed, demonstrating greater range of motion than in formal testing. However, she was unable to reconcile her informal observations with Mr. Grimaldi's objective test results. In cross-examination, Dr. Tu acknowledged that she did not initially address such discrepancy until a comment was raised which she adopted during the quality assurance process in finalizing her report. The added sentence at the end of her report states that she is unable to account for the discrepancies in Mr. Grimaldi's functional capacity evaluation report. I do not find that such statement addresses what consideration should be given to her informal observations of the applicant as compared to the objective reliable effort results in Mr. Grimaldi's report.

33Dr. Moshiri assessed the applicant and based on DSM-5 diagnostic categories, diagnosed the applicant with Insomnia Disorder, persistent, with other sleep disorders, as well as Adjustment Disorder With Mixed Anxiety and Depressed Mood, and Somatic Symptom Disorder. He found that the psychological symptoms are not considered to be of the severity that they would prevent the applicant from performing the essential tasks of his pre-accident employment. Dr. Moshiri confirmed the applicant's diagnosis of persistent insomnia disorder was based on the applicant getting two to three hours of interrupted sleep and waking up seven to eight times in the night because of pain and sometimes nightmares. He reported that the applicant takes naps two hours a day, seven days a week.

34In cross-examination, Dr. Moshiri was unable to clearly address how he could find that the applicant is able to return to work at a job that was eight to nine hours per day, five to six days per week, when he needed to take a two hour daily nap. Dr. Moshiri's response was that if the physical pain goes away, he would have been able to sleep. I did not find Dr. Moshiri's explanation to be persuasive as he does not reconcile how someone who requires a two hour nap daily is able to return to full-time work. Indeed, I find the diagnosis of persistent insomnia disorder and the need to nap daily supports the applicant's case in demonstrating that the applicant suffers a substantial inability to perform his pre-accident employment.

35For the reasons set out above, I find that the applicant has proven on a balance of probabilities that he is entitled to an IRB in the amount of $400.00 per week from August 18, 2023 to July 27, 2024. Since quantum of the benefit was not raised by either party as being in dispute, I find the applicant has established entitlement to $400.00 per week as set out in the CCRO.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest in accordance with s. 51 on the IRB payments from August 18, 2023 to July 27, 2024.

Award

37The 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.

38The applicant did not provide any submissions or evidence of unreasonable withholding or delayed payment of benefits by the respondent. In addition, the applicant did not provide the respondent with particulars of the award claim, despite an order at paragraph 20(ii)(a) of the CCRO.

39The onus is on the applicant to prove on a balance of probabilities that an award is owing. I find that the applicant has not done so in this case. Therefore, no award is payable.

ORDER

40For the reasons outlined above, I find that:

i. The applicant is entitled to an IRB in the amount of $400.00 per week from August 18, 2023 to July 27, 2024, plus interest; and

ii. The applicant is not entitled to an award; and

iii. The application is dismissed.