Citation: Inan v. Intact Insurance Company, 2025 ONLAT 24-008039/AABS

Licence Appeal Tribunal File Number: 24-008039/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:

Oguzhan Inan

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Mary Henein Thorn

APPEARANCES:

For the Applicant:

Piera A. Segreto, Counsel

For the Respondent:

Jaskiran Gill, Counsel

Interpreter:

Muset Caliskan (Turkish language)

Heard by Videoconference:

March 25, 2025

OVERVIEW

1Oguzhan Inan, the applicant, was involved in an automobile accident on January 16, 2024, 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 a non-earner benefit (“NEB”) of $185.00 per week from February 13, 2024 to date and ongoing?

ii. Is the applicant entitled to $754.29 ($2,400.00 less $1,645.71 approved) for a psychological assessment proposed by New Age Specialized Assessments in an OCF-18/treatment plan (“plan”) submitted February 11, 2024?

iii. Is the applicant entitled to $2,150.39 ($4,545.32 less $2,394.93 approved) for psychological services proposed by New Age Specialized Assessments in a plan submitted March 6, 2024?

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

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

PROCEDURAL ISSUES

Applicant’s Supplemental Document Brief and Book of Authorities

3The respondent filed a motion to exclude the applicant’s Supplemental Document Brief, dated and served on March 24, 2025, and the applicant’s Book of Authorities, dated and served on March 25, 2025 in contravention of Rule 9.4.3 and 9.4.4 of the Licence Appeal Tribunal Rules, 2023 (“Rules”).

4The applicant submits none of the information submitted is new information. These documents are relevant to this hearing and should be allowed into evidence and case law is not considered evidence, it is treated the same as the Rules or the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

5I will admit the applicant’s Supplemental Brief and accept the applicant’s Book of Authorities into the hearing. Pursuant to Rule 9.3, I have heard the submissions from the parties, and I am not persuaded that there is procedural unfairness or prejudice to the respondent by allowing these items into the hearing. I am not persuaded the evidence contained in the Supplemental Brief is completely new information to the respondent and I find the Book of Authorities is not considered evidence.

Respondent’s Compliance with the CCRO

6The applicant raised an issue that the respondent did not comply with the CCRO. The CCRO ordered the respondent to provide the applicant with the following documents within 45 days after the case conference:

I. Referral letters from Insurer to any insurer examiners, together with a list of all information/documentation provided to them, from the date of loss to the date of the case conference; and

II. Clinical notes and records of insurer examiners that have conducted all s. 44 assessments on the applicant, from the date of loss to the date of the case conference.

7On December 10, 2024 the applicant was advised that these records do not exist.

8It is the applicant’s submission that these documents are important, and he has the right to review them, especially when raising a s.10 award. He further submits the respondent ought to have requested these records from the s. 44 assessors (i.e., Dr. Ijaz Chaudry, general practitioner and Dr. Sarah Talevzaibeh, psychologist) themselves, not the assessment companies, as the companies would not have access to the draft notes and raw test data.

9Further, the applicant submits the assessors are required by their regulatory authorities to preserve these records for 10 years, while assessment facilities are not bound by these same regulations. The respondent should have requested these records directly from the assessors, and, if an assessor then indicates they don’t have them, there is recourse for the applicant through the regulatory authorities.

10Further, the respondent did not provide the referral letters which would have been in its possession, as they were originally authored by the respondent and sent to the assessors.

11In support of his position that these records exist and were not provided, the applicant points to a references in both doctors’ reports. In Dr. Talebizadeh’s report, dated April 23, 2024, there is a reference that any information collected on the day of the assessment would be stored for a period of ten years. Then, in Dr. Chaudry’s report, dated June 10, 2024, he notes an assistant would be present to witness the physical examination. The applicant finds it highly unlikely that draft notes and raw data for both assessors do not exist, given that the reports were finalized nearly 4 weeks later. The assessors generally rely on the draft notes and the raw data to finalize their final reports.

12The respondent submits that it did send the request to the assessment clinics, but it was the assessors themselves who responded to the request. In an email dated December 4, 2024, a representative from the assessment company advises Dr. Chaudry that an authorization from the applicant is attached and asks the doctor to “…..forward a copy of any notes, charts or data that accompanied your assessment/report of the above examinee or respond confirming that there are none.” [emphasis original] On December 5, 2024, the doctor responded with “I have no additional CNR other than what was sent to me for the assessment”.

13Similarly, in a request to Dr. Talebizadeh, the same email was sent by the assessment company. On December 5, 2024, Dr. Talebizadeh responded with “I do not have any documents to share other than what was already shared”.

14The respondent submits it complied with the CCRO. If the applicant had an issue with this response, the applicant could have brought a motion for production for non-party records. This is the first time the respondent has been made aware the applicant has an issue with that response.

15I am not persuaded by the applicant’s submission that the respondent did not make best efforts to obtain draft notes, charts, or data in both doctors’ possession. I find it made reasonable efforts to obtain them, and it is in compliance with the CCRO. The emails between the respondent, the assessment company and the assessors clearly ask by name for draft notes, charts, or data. It was the assessors themselves that responded they do not have any.

16However, I am persuaded by the applicant’s submission that the respondent did not comply with providing the instructing letters which were sent to the assessors. The respondent did not make any submissions as to why they were not provided.

17Although the respondent did not provide the instruction letters to the assessors, the applicant has not submitted how it will prejudice his case, beyond the fact that a s.10 award is an issue in dispute. I am satisfied that, within the assessors’ reports, the questions the respondent is seeking to have answered is in each report. The applicant has not persuaded me that there is anything further in the instruction letters beyond these questions that would affect this case.

ANALYSIS

Election of the NEB

18The parties disagree on the applicant’s ability to elect the NEB, given that he was working prior to the accident.

19The applicant filed an OCF-10 with the election of NEB on April 11, 2024. He then filed an application with the Tribunal on June 26, 2024, listing an NEB as an issue in dispute. A case conference proceeded where the parties had an opportunity to identify and discuss the issues in dispute. The respondent could have objected to this issue, or raised a preliminary issue, but it did not. NEB remained an issue in dispute in the resulting CCRO.

20At the hearing, the respondent requested that I make a ruling finding the applicant is statute barred from pursuing an income replacement benefit (“IRB”) in the future. An IRB is not before me, as it is not listed as an issue in dispute in the CCRO, and the applicant has not sought to add it to this hearing.

21It is the applicant’s application, and it is his burden to prove his entitlement to the NEB. I find the respondent’s request to be pre-mature, as the applicant has not made a request to add an IRB to the list of issues, and the respondent has not raised a preliminary issue. I find it is not within my purview to make a ruling on the applicant’s eligibility for an IRB at this time. As such, the analysis that follows will be for entitlement to the NEB only.

The applicant is not entitled to an NEB

22Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for a non-earner benefit entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, known as the “Heath Factors,” sets out the principles that should be applied when considering the NEB. It generally focuses on a comparison of the applicant’s pre- and post-accident activities and is around the degree to which the applicant is capable of participating in what is a “normal life,” which includes daily activities.

23On the day of the accident, the applicant was taken by ambulance to the hospital. He submits he suffered injuries to his head, left shoulder, neck, abdominal area, pelvis, left chest, clavicle, and injuries to his upper and lower back. He also suffers from driver anxiety, disturbed sleep, nightmares, ongoing worry, sadness, and moodiness.

24The applicant describes a very active lifestyle prior to the accident. He was learning new skills in the construction industry, had a full social life and was able to care for himself. He cooked, cleaned, did laundry, played sports, took walks, socialized with friends, and went to the gym.

25He testified he worked full time as a self-employed Uber Eats driver for about seven to ten weeks prior to, and for around two days after, the accident. As a driver, he was required to drive on average 300 kms per day. He also was assisting with construction work as an unofficial/unpaid worker to learn skills in the construction industry to further his career.

26As the result of the accident, he submits the evidence will prove his life has completely changed and he now has a complete inability to carry on a normal life. He is not able to work as an Uber Eats driver, he does not socialize with his friends as frequently (a drop from once a day to once a month), and he struggles to participate in the sports he previously enjoyed. Post-accident, he relies on the assistance of his roommate for meal preparation, cleaning, and other household tasks, but he is able to manage his own self care.

27In support of his position, he relies on an OCF-3 from Dr. Leon Steiner, dated March 27, 2024; a Psychological Assessment Report also authored by Dr. Steiner, dated February 21, 2024; an OCF-3, dated June 3, 2024, from Dr. Abdula Sayegh, family doctor; and the clinical notes and records of Humber River Hospital from January 2020 to October 2024.

28The respondent submits the applicant’s impairments do not meet the complete inability to carry on a normal life test, nor has he proven that he has an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. According to the respondent, the applicant has not demonstrated the change in his ability between his pre-and post-activity levels. He has a baseline level of functionality that does not meet the test for NEB.

29The respondent relies two s. 44 assessors’ reports: one from Dr. Talebizadeh, psychologist, dated June 10, 2024, and the second from Dr. Chaudhry, general practitioner.

30The clinical note and records from Humber River Hospital document the applicant’s attendance on the same day of the accident and he was not admitted overnight. The applicant reported that he did not have any head injuries; however, he was experiencing a headache. He also felt pain in his left shoulder and lower abdomen, and he attributed that pain to the position of the seatbelt on his body at the time of impact. Towards the end of his visit the applicant reported his pain was lessening, doctors released him and advised he should alternate between ice and heat and take Naproxen for ten days for any pain he may have. There were no significant findings.

31On February 20, 2024, Dr. Steiner interviewed the applicant by telephone with the help of an interpreter. It is his opinion that the applicant has a diagnosis of Major Depressive Disorder and Specific Phobia, Situational (in-Vehicular type).

32Dr. Steiner also completed an OCF-3, dated March 27, 2024, in support of his position that the applicant has a complete inability to carry on a normal life. He indicated that, as a result of the applicant’s injuries, the anticipated duration of his disability is more than 12 weeks. He concludes, as a result of the accident, the applicant has a complete inability to carry on a normal life due to pain symptomology, limited movements in his neck, left shoulder, prolonged sitting, headaches, sadness, irritability, nervousness, restlessness, and anhedonia. He opined that the applicant is able to perform his personal care tasks independently, but with pain, and he has been unable to return to work post-accident. He also accepts the applicant’s self reporting that he has experienced significant changes with his usual activities and social functioning since the accident. He lists some of the significant changes in the OCF-3 as swimming, football, kickboxing and socializing with friends.

33I find that Dr. Steiner simply provides an opinion that the applicant meets the non-earner benefits test but does not provide a comprehensive analysis about the frequency or the level of change in the applicant’s daily activities that support his opinion. Without his analysis I am unable to determine what changes occurred in the applicant’s level of activity pre and post accident and therefore I must give his report less weight.

34Turning to the respondent’s s. 44 reports, both Dr. Talebizadeh and Dr. Chaudry conducted an in-person assessment of the applicant and a review of Dr. Steiner’s report. Dr. Talebizadeh was asked her opinion about the applicant’s removal from the MIG and two psychological treatment plans, while Dr. Chaudry was asked to opine about the removal from the MIG and IRB. Although these assessments were authored for the purpose of removal from the MIG, psychological treatment plans and the IRB, I find they are useful for my analysis of the NEB as they speak to the applicant’s functionality.

35Overall, Dr. Chaudry found there were no musculoskeletal impairments, and the applicant does not have a substantial inability to perform the essential tasks of his employment as a result of the accident. The applicant did complain that he struggled to perform tasks such as cooking, cleaning and laundry, and he has to depend on his roommate for assistance. Dr. Chaudry recommended a regime of targeted neck and back exercises, which may benefit his physical issues and assist him with returning to the essential tasks of his self-employment.

36The applicant reported to Dr. Talebizadeh that he is fully independent with his self care activities, he manages his on laundry and prepares simple meals. Due to pain, he limits the amount of cooking he does, because he has difficulty standing for long periods of time. He prefers not to drive due to driver anxiety; instead, he takes public transit. Post-accident, he did try to play soccer again, but he felt dizzy on the field, fell and broke his leg. He was immobilized for three weeks after that fall. Since then, he has been more cautious and avoidant of physically demanding activities.

37After assessing the applicant, Dr. Talebizadeh made a similar finding to Dr. Steiner, in that the applicant meets the diagnostic criteria for Adjustment Disorder with mixed symptoms as well as Specific Phobia (Vehicular), as per the DSM-5. She also opines that the impairment should be temporary, and the prognosis is good, given a course of psychological counselling.

38The applicant submits the dizziness he experienced is a direct result of the accident, as he has never experienced that type of dizziness before. Given that I have been pointed to one incident of dizziness, I am not persuaded that the dizziness is of any frequency that is hindering his ability to carry on a normal life or is substantially hindering his daily activities.

39In the OCF-3 completed on June 3, 2024, Dr. Sayegh indicates the applicant has a complete inability to carry on a normal life, and he suffers a substantial inability to perform the housekeeping and home maintenance that he normally performed prior to the accident. However, when asked if he responded “yes” to any disability test in the table above, and what is the anticipated duration of the disability, the doctor chose to mark within the 9–12-week range.

40The applicant has not persuaded me, on a balance of probabilities, that he meets the test for a NEB. I find the applicant has demonstrated there is some impairment and difficulty in carrying on his normal life. I accept that the applicant suffers from some physical and psychological impairments; however, I disagree that it meets the high threshold that the NEB test requires. Although both Dr. Steiner and Dr. Sayegh determined that the applicant has a complete inability to carry on a normal life, they did not agree on the duration of his disability. Dr. Steiner opined it would be more than 12 weeks, while Dr. Sayegh indicated that the anticipated duration of the applicant’s disability is expected to be within the 9–12-week range. Further, when I review the findings of all of the assessors, it is the opinion of three of four assessors that with some type of exercise or treatment the applicant is expected to improve if not recover.

41Dr. Steiner recommends to 12–16 sessions of psychotherapeutic treatment over a period of three to four months to resolve an individual experiencing maladaptive emotions, behaviors, and cognitions problems. He also recommends a vehicular re-integration assessment and a multi-disciplinary pain program to prevent a chronic pain disorder. I take this to mean the applicant has some ability to function in his daily activities, but he can use the assistance of some treatment to increase his abilities. I find the expected effectiveness of this treatment recommended by Dr. Steiner to be closely aligned with Dr. Sayegh’s 9–12-week period of anticipated disability, which I deduce to mean that the applicant, with short term treatment, should have meaningful improvement to increase his ability to sustain his daily activities.

42Further, the applicant’s own evidence does not persuade me he meets the NEB test. According to the applicant’s testimony, he drives daily locally, and he has started to take on more of the household duties, such as cleaning, cooking, and home maintenance. His friend accompanied him to the hospital when he broke his leg playing soccer, and, by his own admission, he still socializes, although perhaps not as much as prior to the accident.

43In the area of socialization, I am also not persuaded that the decrease in his social life and involvement in social activities is solely attributed to his desire to withdraw from his friends after the accident. He reported to Dr. Talebizadeh that “…his friends are busy with work….”, which may be a contributing factor to the lesser amount of time he is able to socialize with his friends.

44Although the applicant testified that he aspired to work in the field of construction, and, due to the injuries from the accident, he as been unable to pursue that path, I find the applicant has not sufficiently demonstrated how his impairments have affected his ability to pursue his desired career path. The applicant simply testified that he is unable to continue without any further analysis of what parts of the job is he hindered from doing as a result of the accident and for how long he will be unable to enter into this field. Given that I have such limited information about this career path, I find myself unpersuaded by the applicant’s position.

45In summary, when I consider the totality of the evidence and the Heath factors, I am not persuaded the applicant has demonstrated, on a balance of probabilities, that he meets the test for an NEB.

The applicant entitled is to the outstanding amount of $754.29 for a psychological assessment.

46I find the applicant is entitled to the outstanding amount left under the psychological assessment treatment plan.

47To receive payment for a treatment and assessment plan under s. 15 and s. 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

48Dr. Steiner proposed in an OCF-18 (submitted to the respondent on February 11, 2024) a psychological assessment. Dr. Talebizadeh agreed with Dr. Steiner that the proposed assessment is reasonable and necessary. The respondent approved some of the cost of the assessment; specifically, it only approved 10 hours for the assessment ($1,496.10), and declined to approve fees for an additional 3 hours ($503.90).

49The applicant submits that the additional hours are reasonable and necessary as he does not read, write, or speak English, which makes the use of an interpreter necessary to complete the assessment. The respondent disagrees. It submits that it is in compliance with the Schedule, and this part of the denial is correct.

50I am persuaded by the applicant that the additional 3 hours are reasonable and necessary to interview the applicant, complete the psychometric testing and compile the report. I find the use of the interpreter is necessary to conduct the assessment, and, therefore, it may extend the number of hours needed to complete the assessment.

51Further, New Age Specialized Assessments proposed $200.00 for the completion of the OCF-18 form. The respondent approved $149.61 of that amount, leaving in dispute $50.39. The applicant submits the Professional Services Guideline allows up to $200.00 for this fee. In this case, 2 hours were needed to complete the form given the need for interpretation services.

52The respondent disagrees. Again, it submits that it is in compliance with the Schedule, and this part of the denial is also correct.

53I find the balance of the cost to complete the OCF-18 is within the Professional Services Guideline, and I am persuaded that the extra hour (in the amount of $50.39) is reasonable and necessary given the interpretation services.

54The applicant has satisfied me that he is entitled to the outstanding amount left under this psychological assessment treatment plan, $754.29.

The applicant entitled to the outstanding amount of $2,150.39 for psychological services.

55The applicant is entitled to the outstanding amount left under the psychological services treatment plan.

56In an OCF-18 submitted March 6, 2024, Dr. Steiner proposed a psychological services treatment plan, which included 12 psychological counselling sessions. Dr. Talebizadeh also agreed that 12 sessions of counselling are reasonable and necessary. The respondent partially approved the plan, leaving $2,150.39 in dispute.

57Part of the dispute arises from the request for the cost of planning in the amount of $300.00. The applicant submits that, because of his language barrier, the service provider needed more time to plan how to provide the psychological service. It is the respondent’s position that it is not responsible to pay for an activity that would be considered the cost of doing business.

58I am persuaded by the applicant’s submission that, when dealing with an insured person with a language barrier, in order to sufficiently gather data, extra planning may be required to extract that data, and it may require an additional cost. I find the $300.00 for planning costs are reasonable and necessary.

59The respondent also denied $50.39 for the completion of the OCF-18 The parties made the same submissions as they did for the treatment plan above. I find it is reasonable and necessary, given the language barrier, to extend the preparation time needed to complete the OCF-18 form by 1 hour.

60Lastly, the respondent denied paying for the professional interpretation services in the amount of $1,800.00 to complete the service.

61The applicant submits that, without the interpreter, the services could not have been provided. According to the applicant, it is reasonable and necessary. The respondent submits that it is not responsible to pay for an activity that would be considered the cost of doing business.

62I find the services of a professional interpreter are reasonable and necessary. Without the professional interpreter, the applicant could not have communicated with the treatment provider.

63The applicant has met his burden he is entitled to the proposed psychological services in the amount of $2,150.39.

Interest

64The applicant is entitled to interest on any overdue payment of benefits.

Award

65Section 10 of Regulation 664 states that, if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, it may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award together with interest. In analyzing whether an insurer’s conduct in withholding or denying a benefit warrants an award, an insurer’s behaviour must be seen as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The threshold for an award is high, and the case law is well-established that an award is not meant to punish the unsuccessful party at a hearing, nor is it to penalize an insurer for getting something wrong.

66The respondent submits the applicant has not established that it is liable to pay an award in this case.

67The applicant submitted the particulars of the award to the respondent in a letter dated December 9, 2024. The letter outlines the reasons for the award as follows:

i. The failure of the respondent to pay for the psychological treatment/assessment plans, which are reasonable and necessary;

ii. The failure to schedule convenient insurer’s examinations, with transportation and interpretation services, pursuant to s. 44(9)(2)(i) of the Schedule; and

iii. The failure to comply with the CCRO.

68First, the applicant submitted he is entitled to an award because, the respondent denied payment the psychological assessment/treatment plan in full. It unilaterally dictated what the rate would be and denied the balance.

69I find the applicant has not met his burden to demonstrate entitlement to an award. The respondent did pay for the psychological treatment/assessment plans; however, it did not pay for what it perceived to be additional services. The applicant submitted that these additional expenses were above the normal rates, as he needed interpretation services. I find the respondent is entitled to question the invoiced amounts and even deny them, within reason.

70Secondly, the applicant submits that, pursuant to s. 44(9)(2)(i) of the Schedule, the respondent scheduled assessments in a “chaotic “manner, ignoring his injuries and circumstances. He submits the chaotic scheduling has unnecessarily disrupted his life and recovery process.

71As an example, he submits that the respondent advised him that an assessment would commence at 8:30 am. He then received a call from a driver requesting his attendance for an assessment scheduled at 8:30 pm but commenced at 9:15 pm. After the assessment was complete, the applicant was advised that transportation would return him to his residence. Also, the respondent indicated that an interpreter was not needed for the assessment, when in fact one was needed. The applicant then submits that the “the interpreter left”, the assessment centre closed, and a ride did not come to pick him up to take him back to his residence. He was left to arrange his own transportation home.

72The respondent did not make a particular submission regarding this incident.

73Although I find it unfortunate that the applicant was left in this position, I am not persuaded by the applicant’s submissions that the respondent did not arrange for transportation for the applicant to go back to his residence. There may have been an error on the part of the transportation company, the circumstances are not clear. Therefore, I am unable to make a determination if the applicant should be granted an award in this circumstance.

74Further, although the applicant submitted the respondent did not book an interpreter, in the same submission, the applicant states “the interpreter left”. Again, I am not persuaded by the applicant’s argument that an award is warranted in this situation.

75Lastly, I have already addressed the applicant’s submission regarding the alleged non-compliance with the CCRO in the motion dealt with above.

76The applicant is not entitled to an award. I do not find in each of these cases the respondent’s behavior rises to the level of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. Therefore, a s. 10 award is not payable.

ORDER

77For the above reasons, I find:

i. The applicant is not entitled to a non-earner benefit.

ii. The applicant is entitled to the balance of the psychological assessment plan in the amount of $754.29.

iii. The applicant is entitled to the balance of the plan for psychological services in the amount of $2,150.39.

iv. The applicant is entitled to interest on any overdue payment of benefits.

v. The applicant is not entitled to an award.