Citation: Tazi v. Certas Home and Auto Insurance Company, 2025 ONLAT 21-012541/AABS

Licence Appeal Tribunal File Number: 21-012541/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:

Mostafa Tazi

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Mostafa Tazi, Applicant

For the Respondent: Andrea R. Lim, Counsel

HEARD: By way of written submissions

OVERVIEW

1Mostafa Tazi (“the Applicant”) was involved in an automobile accident on November 22, 2019, and sought benefits from Certas Home and Auto Insurance Company (“the Respondent”) 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 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 IRBs for the period from September 24, 2021 to-date and ongoing, and if so, at what weekly rate?

ii. Is the Respondent liable to pay an award under section 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

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

RESULT

3The Respondent paid IRBs to the Applicant for the period from September 23, 2021 to August 4, 2023, plus interest pursuant to section 51 of the Schedule. Thus, entitlement for this period is not in dispute.

4The Applicant has not demonstrated that he is entitled to a weekly IRB rate above the amounts paid by the Respondent.

5The Applicant has not met his onus to demonstrate entitled to IRBs for the period from August 4, 2023 and ongoing.

6No award and no interest is payable.

BACKGROUND

7The Applicant was the driver of a vehicle which was struck from behind on a busy highway, causing his vehicle to strike the vehicle in front of him. He was taken by EMS from the scene of the accident to the hospital, but refused care following a confrontation with hospital staff, and went home via taxi. The next day he met with his family physician, Dr. M. Alam, who gave him prescription medication for neck and shoulder pain.

8The Applicant engaged in physiotherapy to treat his accident-related shoulder and neck pain, and continued to see Dr. Alam with regards to it. Additionally, the Applicant developed psychological symptoms during this time, and was diagnosed with an adjustment disorder with depression and anxiety by Dr. A. Dreshaj, psychiatrist, on April 9, 2021.

9The Applicant applied for IRBs due to this accident-related injuries.

10The Respondent accepted the Applicant’s claim, but sought to assess his ongoing entitlement to IRBs in 2022. However, the Applicant did not attend the full battery of insurer’s examinations (“IEs”) and the Respondent stopped payment of IRBs as a result. The Applicant disputed the stoppage of payments and argued that the IE notices failed to comply with the Schedule.

11The Applicant was successful in his Appeal regarding the IE notices. This led the Respondent to reinstate the Applicant’s entitlement to IRBs. However, the Respondent again sought to examine the Applicant to determine his ongoing eligibility to IRBs. The Applicant did not attend all the IEs, which remains the case to-date.

12Despite the allegations of non-compliance with section 44 of the Schedule, the Respondent paid IRBs to the Applicant on May 31, 2024. The payment was for the period from September 23, 2021 to November 11, 2021, and was issued at the rate of $139.62 per week (“the pre-104 rate”). For the period from November 23, 2021 to August 4, 2023, it paid IRBs at the rate of $185.00 per week. In addition, the Respondent paid interest pursuant to section 51 of the Schedule.

13The Respondent stopped payment of further IRBs on the grounds that the Applicant failed to attend the IEs in 2023, and has not established that he is disabled from working due to accident-related injuries.

14The Applicant claims ongoing entitlement to IRBs. Additionally, he claims that the pre-104 rate is not fair and does not reflect his employability and academic qualifications. The Applicant submits that the weekly rate for the first 104 weeks should be $320.00 per week, and $185.00 per week for the period thereafter.

15The Respondent disputes that the Applicant is entitled to IRBs and submits that he should be barred from proceeding with his application due to a failure to attend IEs in 2023. Further, it submits that the Applicant had not provided any objective medical evidence to indicate that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience.

16For the following reasons, I find that the Applicant has not met his onus to demonstrated entitlement to IRBs as claimed.

ANALYSIS

IRBs

17To qualify for IRBs for the period claimed, the Applicant must demonstrate that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience, pursuant to section 6(2)(b) of the Schedule.

18The onus is on the Applicant to demonstrate that he meets the eligibility test for IRBs. It is also his onus to establish the weekly quantum of the benefit for the pre-104 period, and thereafter.

Quantum

19I find that the Applicant has not demonstrated that he is entitled to a weekly quantum that is different than the amounts paid by the Respondent.

20The Applicant submits that the pre-104 rate of $139.62 per week is unfair and does not reflect his employability and academic qualifications. However, I find that these reasons are insufficient to increase the weekly quantum of IRBs.

21The Applicant reported no income from self-employment prior to the accident and does not claim any self-employment income post-accident. His claim for IRBs is based solely on his income from employment prior to the accident. The Respondent calculated the pre-104 rate based on the employment documents provided by the Applicant. The documents demonstrated that the Applicant earned gross employment income in the amount of $10,371.52, amounting to a gross weekly income of $199.45, entitling the Applicant to a weekly IRB of $139.62. At the two-year mark of the Applicant’s claim, and in accordance with section 7(2)1(ii) of the Schedule, the Respondent increased the Applicant’s weekly IRB payment to $185.00, effective November 22, 2021.

22The Applicant has provided no evidence to indicate that he is entitled to a greater weekly rate of IRBs. Pursuant to section 4(5) of the Schedule, weekly payments for IRBs are calculated based on the income reported under the Income Tax Act. The Applicant was ordered by the Tribunal to produce any collateral benefits files, as well as his tax returns for the years 2018, 2019, 2020, & 2021, but he failed to do so. In fact, for this hearing the Applicant provided no evidence relating to his income – both prior to and after the accident. Accordingly, I am unable to find that he is entitled to a rate that is different than the amount calculated by the Respondent.

23The Applicant’s participation in an English Language proficiency training program does not entitle him to a greater weekly quantum. The Applicant submits that the Tribunal should consider his participation in an English Language proficiency training program and suggests that this entitles him to a greater weekly quantum. While I applaud the Applicant for continuing to improve his English language skills, IRBs are calculated based solely on an Applicant’s income, as reported for tax purposes, and is not related to any training engaged in following the accident.

24Having not produced any information related to his pre or post accident employment, I find that the Applicant has not demonstrated that he is entitled to a weekly quantum that is different than the amount calculated by the Respondent.

Entitlement

25I find that the Applicant has not demonstrated that he is entitled to IRBs for any period beyond August 4, 2023.

26To be eligible for IRBs as claimed, the Applicant must demonstrate that he suffers from an impairment as a result of the accident, and that the impairment causes a complete inability to engage in employment or self employment for which he is reasonably suited for.

27Here, the Applicant has provided no contemporaneous medical evidence demonstrating an ongoing impairment which precludes him from engaging in reasonably suited employment. The most contemporaneous evidence is an assessment by A. Pakzad, physiotherapist, dated December 21, 2022. The clinical impression from the assessment was that the Applicant sustained a cervical sprain/strain, postural syndrome, and myofascial pain syndrome. Nothing in this document suggests that the Applicant is precluded from working as a result of his accident-related sprain and strain injuries.

28I give little weight to the disability certificate completed by Dr. Alam, dated June 28, 2022. While the disability certificate states that the Applicant suffers from a substantial inability to complete the essential tasks of his employment, is not contemporaneous with the period of claim. The document pre-dates the Applicant’s period of claim by more than a year, thus is has limited application when assessing his ongoing entitlement to IRBs. Further, Dr. Alam’s CNRs for the same period are not before me, despite the Applicant being ordered to produce the records. Consequently, I give little weight to the disability certificate for these reasons.

29I give little weight to the consultation report by Dr. A. Dreshaj, psychiatrist, dated April 7, 2021. This document holds little weight because it does not address the Applicant’s ability to work or whether he is disabled from working due to a psychiatric impairment, and it pre-dates the period of claim by more than two years. Although Dr. Dreshaj diagnosed the Applicant with an Adjustment Disorder with Mixed Anxiety and Depressed Mood, the psychiatrist never opined on the Applicant’s ability to work. Regarding employment, the report states that the Applicant is sad because he is not doing the job he loves, but does not clarify what job he is speaking of. From the records, I infer that the Applicant is referring to his reported experience as a researcher, which he concluded several years prior to the subject accident. Notably, Dr. Dreshaj recommended that the Applicant engage in psychotherapy and take medication, but the Applicant has refused to do so to-date.

30I find that the letter of attendance related to his English Language proficiency training program does not indicate that the Applicant is disabled from working. The attendance records do not mention any accommodations or requests for accommodation. Similarly, the records include no reference to any medical issues. Accordingly, I find that this document does not help me determine whether the Applicant is impaired from working.

31The remaining documents provided by the Applicant are not contemporaneous and do not demonstrate an ongoing and/or permanent impairment. The medical notes dated, November 23, 2019, December 3, 2019, December 12, 2019, January 14, 2020, and December 8, 2020 pre-date the period of claim considerably and hold no relevance for the period of claim as a result. Similarly, the progress report by C. O’Brien, physiotherapist, dated February 5, 2020 pre-dates the period of claim too significantly to be considered when assessing whether the Applicant is disabled from working as a result of the accident.

32The Applicant’s evidence is outweighed by the IE reports submitted by the Respondent. Dr. B. Ballon, psychiatrist, issued a report, dated June 6, 2022. In the document, it notes that the Applicant’s employment history is unclear, but that he reported that he was working part-time at a restaurant at the time of the assessment, in May 2022. The document confirms that the Applicant was referred for medication and psychotherapy but refused the recommendation and insisted on treating his depression and anxiety himself. Dr. Ballon indicated concern for the Applicant’s vague self-reporting and found it difficult to determine his actual abilities and work activities pre-and post accident. Dr. Ballon also highlighted the inconsistency with the Applicant’s self-reporting and the medical records. For example, the Applicant reported to Dr. Ballon that he lost consciousness in the accident, but Dr. Alam’s contemporaneous records from the incident state that there was no loss of consciousness. For clarification purposes, Dr. Ballon asked that Applicant provide his family physician records for the period pre-dating the accident as well as the emergency room records from the date of the accident, yet these were never produced.

33Dr. Ballon concluded that the Applicant’s presentation at the assessment was not directly related to the subject accident. Dr. Ballon relied on several factors to come to the determination. They include reference to the Applicant’s unstable thyroid condition, that he declined to use Ativan despite it being prescribed for him, and non-compliance with treatment recommendations. Additionally, Dr. Ballon found that the timing of the Applicant’s reported symptoms indicates that the accident is not the cause of the Applicant’s psychiatric symptoms. It was noted that the Applicant reported no psychological or psychiatric symptoms for the first seven months following the accident, suggesting that there are other factors contributing to current state. Dr. Ballon noted that the Applicant presents with symptoms of an adjustment disorder, but no physical assessor concluded that the accident is the cause of any physical impairments, thus Dr. Ballon was unable to connect the adjustment disorder symptoms to the subject accident.

34From a physical perspective, I give weight to the report of Dr. M. Ko, physician, dated June 6, 2022. The report notes that on examination the Applicant demonstrated full range of motion throughout his body, including his neck, back and shoulders. Dr. Ko observed no muscle wasting or systemic inflammation. Dr. Ko reviewed the medical records provided by the Applicant, including a shoulder ultrasound from December 2019 which showed no rotator cuff tears, and concluded that he sustained sprain and strain injuries as a result of the accident but demonstrated no sign of impairment from a physical perspective and that there was no objective evidence to substantiate a disability or limitation in the Applicant’s activities.

35Considering the period of the Applicant’s claim for IRBs relative to his evidence, I conclude that the Applicant has not met his onus to demonstrate that he suffers a complete inability to engage in employment or self-employment for which he is reasonably suited by way of education, training or experience. Accordingly, I find that he is not entitled to IRBs for the period after August 4, 2023.

Interest

36Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having concluded that the Applicant is not entitled to IRBs for the period claimed, it follows that he is not entitled to interest.

Award

37Under section 10 of Regulation 664, 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.

38Here, the Applicant has not demonstrated that the Respondent unreasonably withheld or delayed the payment of benefits. I acknowledge that the Respondent ceased payment of IRBs due to missed IEs, and later revoked the position and paid IRBs for the relevant period. However, it is clear from the preliminary issue decision, dated February 15, 2023, that the withholding of the Applicant’s IRBs was related to a genuine belief by the Respondent that the Applicant failed to attend properly scheduled IEs. The Respondent paid IRBs for the period, plus interest, following a determination that the IE notices were invalid and that a Reconsideration of the preliminary issue decision was not an option until the matter was finally disposed of.

39To me, the actions of the Respondent cannot be characterized as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. Thus, I find no award payable.

ORDER

40The Applicant has not met his onus to demonstrate entitled to IRBs for the period claimed.

41No award and no interest is payable.