Licence Appeal Tribunal File Number: 24-004531/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:
Haithem Slim
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATORS:
Craig Mazerolle, Vice-Chair Harouna Saley Sidibé, Member
APPEARANCES:
For the Applicant:
Tara Lemke, Counsel Liam Wray, Articling Student
For the Respondent:
Zachary Peachey, Counsel Ian Garden, Counsel
Interpreter:
Jim Kansela, French Language
HEARD:
By way of Videoconference on April 8 – 10, 2025
OVERVIEW
1Haithem Slim, the applicant, was involved in an automobile accident on February 13, 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, Certas Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2Conducted before a bilingual hearing panel, the videoconference hearing was completed with the assistance of a French language interpreter. Following his testimony and the testimony of his spouse, the applicant stated that the French language interpreter could be excused from the hearing.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit ("IRB") in the amount of $394.11 per week from November 8, 2022 to date and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
4During the hearing, the parties removed several of the issues that were listed in the August 23, 2024 Case Conference Report and Order. Specifically, the applicant withdrew his claim for an award, while the respondent withdrew its claim for repayment of the IRB in the amount of $260.12.
5The parties also agreed that, if the Tribunal found the applicant was entitled to the IRB, they would address the question of quantum amongst themselves.
RESULT
6The applicant has established his entitlement to payment of the IRB for the period of November 26, 2022 to date and ongoing.
7The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.
ANALYSIS
8In the present case, the applicant's claim for the IRB falls entirely within the period after the first 104 weeks post-accident. As such, the applicant's claim is determined by reference to s. 6(2) of the Schedule which provides that "as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience". The applicant has the onus to demonstrate, on a balance of probabilities, that he meets this test.
Reasonably Suited Employment or Self-Employment
9The applicant immigrated to Canada from Tunisia in 2017. Prior to leaving Tunisia, the applicant obtained a degree in mechanical engineering, but this degree was not recognized in Canada. As such, he signed up for a training program in building renovations. Following this training, the applicant started, but did not complete, an automobile repair technician program at La Cité College. After the accident, the applicant took an accounting and payroll program with Willis College. However, he has yet to complete the practicum portion of this program.
10The applicant testified that he held four jobs prior to the accident. The applicant testified that after his arrival in Canada, his first job was in building renovations. Later, he started working at Mr. Lube as a Lube Technician. Among his responsibilities at Mr. Lube, the applicant was tasked with changing motor oil, changing tires, and repairing mufflers. The applicant also worked with Bel-Air Toyota, where his tasks were largely the same as the ones he completed with Mr. Lube. Finally, the applicant owned a cleaning company. With this business, he purchased a franchise, Jan-Pro, and he managed five cleaning contracts. He eventually hired and managed a single employee with this company.
11The respondent did not take issue with the types of jobs for which the applicant would be reasonably suited based on his education, training, and experience. Considering the applicant's background, which includes roles involving heavy physical tasks and attention to detail, we are satisfied that he is well-suited for physical roles requiring high levels of concentration. Additionally, given his experience in construction and as the owner of a cleaning company, we find that he is well-suited for employment or self-employment involving project management and personnel supervision.
Complete Inability
12The applicant supports his claim that he sustained a complete inability to perform any employment by contrasting the lack of physical, cognitive, and psychological impairments he had prior to the accident with the significant challenges he now faces. According to the applicant, the medical record strongly corroborates his testimony about these impairments and their impact on his ability to work. He also highlights the testimony of his spouse as further corroboration.
13The respondent challenges the applicant's position by arguing that the evidence shows he has some capacity for work. In particular, the respondent highlights its surveillance evidence and expert evidence to show that, while he has experienced some difficulties, the applicant has not established that he meets the high threshold needed to receive a post-104 week IRB. The respondent also argues that the applicant's credibility is at issue.
14We find the applicant has established that he sustained a complete inability to perform any "reasonably suited" employment or self-employment for the following reasons.
15First, we find the applicant's testimony presents a compelling account of his post-accident struggles. In particular, the applicant spoke at length about his emotional and psychological issues, including anger management, self-isolation, and delusions. The applicant also detailed his accident-related pain, as well as the efficacy of his post-accident treatment, e.g., helpful pain injections from the KOPI clinic.
16The applicant further spoke about his pre- and post-accident work history, contrasting his capacity to work several jobs before the accident with his current inability to sustain any ongoing employment. According to the applicant, he tried to return to work following the stop of his IRB payments, as he needed to support his family. He took on occasional jobs in construction, such as painting and drywall, and he testified that he worked as a delivery driver for Uber Eats in 2024. However, the applicant claims he could not continue with these roles due to his accident-related impairments.
17Second, the applicant's spouse provided compelling corroboration for his account. Even though the respondent raised questions about the extent of her knowledge of the applicant's condition and time outside of the home, her testimony about the applicant's struggles largely aligns with the applicant's testimony. For instance, she spoke at length about the applicant's emotional struggles, including his anger and his desire to self-isolate in the basement. She also spoke about the differences between his pre- and post-accident behaviours, along with her need to cover the family's expenses (as the applicant is having a difficult time earning an income). This narrative lends credence to the post-accident difficulties that the applicant experienced, as well as the severity of his emotional and psychological symptoms.
18Third, while the respondent attempted to undermine the applicant's credibility by pointing to inconsistencies with Canada Revenue Agency records, treatment notes from the KOPI clinic, etc., we find the applicant's account of his work history and accident-related impairments are largely supported by the medical evidence and his spouse's evidence. We also accept that the applicant performed some paid employment after the accident. We conclude that these return to work attempts provide further support for his incapacity to perform reasonably suited employment. We will explore this point more below.
19Fourth, we find that the medical evidence supports the applicant's entitlement to a post-104 IRB. Specifically, in the applicant's chronic pain report (dated July 16, 2023), Dr. Kevin Smith, a chronic pain expert, stated that he suffers from accident-related chronic pain syndrome (with a strong psychological component). Dr. Smith also concluded that the applicant would be unlikely to improve with time. Therefore, due to the severe impact of the chronic pain on his health and functional capacity, the assessor found it was unlikely that he could maintain productive employment in the future, especially after the absence caused by his impairment.
20We place significant weight on this report, as Dr. Smith's chronic pain report dated July 16, 2023, is the most recent expert report in evidence. The reports of Drs. Tilak Mendis, a neurologist, and Mohammed Abdul Wahab Khan, a physiatrist, are both dated November 2, 2022. Further, Dr. Smith's report provides more details about the actual state of the applicant than the reporting of Dr. Wahab Khan, and Dr. Smith's opinion had the benefit of the prior medical reports when providing his conclusions.
21We also note that these chronic pain opinions were obtained following an extensive assessment that Dr. Smith explained during the hearing. Specifically, he used the cumulative information he gained during his assessment, e.g., noted pain and functional limits, psychological factors (established through the clinical history), test results, and the physical findings from his examination/clinical presentation. On this last point, Dr. Smith testified that the applicant moved slowly and stiffly; there was a reluctance to stand up straight; tenderness was noted; etc.
22The respondent argued that Dr. Smith modified his opinion on the applicant's capacity to work once he was aware of other pieces of evidence during the hearing, including the surveillance. This argument does not significantly challenge the weight assigned to this opinion, as, for reasons noted below, the experience of pain is only one of several factors that we have found to impact the applicant's capacity for work. Therefore, even if Dr. Smith may have softened the severity of his conclusions when confronted with this new evidence, we still find the balance of the medical evidence supports the applicant's position.
23As for his cognitive and psychological issues, psychologist Dr. David Joubert's s. 25 report (dated May 23, 2023) indicates that the applicant suffers from cognitive, emotional, and social-interpersonal deficiencies that limit his ability to work. For instance, his cognitive performance was found to be too limited to allow him to maintain the level of mental effort needed to maintain employment. The applicant was also found to be too preoccupied with his own distress to attend to the needs of others. As such, Dr. Joubert concluded that a return to work would not take place until the applicant's cognitive, emotional, and social capacities returned to a level somewhere around his pre-accident functioning. To this end, Dr. Joubert concluded it would be unreasonable to expect the applicant could return to work so long as his mental health concerns were not being treated in a manner that had some level of efficacy.
24We find the analysis conducted by Dr. Joubert is logical and well-grounded, and his final opinion is amply corroborated, e.g., similar findings in a contemporaneous opinion letter from Dr. Stewart Madon, the applicant's treating psychologist at Capital Region Psychological Services (dated January 27, 2023). Therefore, we place significant weight on his findings, as well as his conclusion about the applicant's employment capacity as it relates to psychological and cognitive functioning.
25In contrast, the respondent relied on the expert report of Dr. Ranjith Chandrasena, psychiatrist (dated November 2, 2022). We place less weight on this report. We find that Dr. Joubert conducted a more recent appraisal of the applicant, and Dr. Chandrasena's report contains inconsistencies in its analysis. Specifically, Dr. Chandrasena concludes that the applicant can return to gainful employment, but then states that he should be seen by a psychiatrist as soon as possible. Dr. Chandrasena also recommends that the applicant should receive medications and support services.
26In our view, while it is possible for an assessor to conclude that an individual can return to work yet still require urgent treatment, the contrast between the applicant's assessed work capacity and the urgency of the recommended treatment invites closer scrutiny of the internal coherence of the opinion.
27The respondent also relies on the vocational evaluation and transferable skills analysis of Dan Egarhos, a certified vocational evaluator (dated November 2, 2022). Despite this assessor's opinion that there are available jobs that the applicant can perform, we note that this assessor also found the applicant's test results were significantly impaired. According to this assessor's testimony, the applicant's scores were particularly low in contrast to the applicant's professional and educational background.
28The respondent argued that limited weight should be applied to these test scores, as the applicant achieved academic success following the accident. To this end, the respondent highlights the records from Willis College where the applicant received high grades. We place limited weight on the Willis College records, as there was limited information about what the applicant was expected to do as part of this program.
29Finally, we recognize that a major aspect of the respondent's case is its video surveillance. Briefly, its surveillance team followed the applicant over the course of three days, filming him during two of these days. On the first day, the applicant was seen walking outside of his home. On the second day, he was filmed driving between several construction sites. He was also seen performing work at two of these three locations, e.g., moving wheelbarrows, picking up equipment, retrieving items from a trailer, etc. According to the respondent, this evidence raises serious questions about the veracity and extent of the applicant's alleged impairments.
30We have considered this evidence. We are satisfied, on a balance of probabilities, that it does not disrupt the findings set out above. First, the applicant was only filmed on two of the three days, with the first being limited to an observation of him walking outside of his home. On the second day, when he is seen attending at different worksites, the applicant was also noted to have taken an extended break in his vehicle in the middle of the day. Finally, there are periods on this second day when the applicant is not seen on camera. As such, it cannot be said what, if any, work activities he is engaging in during these absences.
31The respondent submitted that we can infer work was being done when the applicant is not seen on camera. For instance, the applicant is seen at one point entering a private residence with a clean shirt, and then, a while later, he is seen leaving with his shirt covered in a white material. The respondent asserts that the white material is related to working with drywall. Even if we accept the respondent's inferences, we find that the nature, scope, and quality of this work cannot be deduced without seeing the work itself.
32We also find that this surveillance evidence is essentially consistent with the fact that the applicant made several attempts to return to paid employment after the accident, namely construction and food delivery. However, the applicant testified that he could not sustain these jobs on an ongoing basis. Therefore, we conclude that while the applicant was seen performing construction work on one of the three days he was followed, this limited evidence fits into the overall picture we have received about his post-accident work history.
33This work history also aligns with our understanding of the applicant's employment capacity. Specifically, we accept that he may have the capacity to do some of the physical tasks needed for construction and delivery (e.g., lifting, pushing, etc.), but we find his starts and stops with these different jobs show he does not have the psychological, emotional, and cognitive capacity needed to sustain this work. Put another way, due to his significant, accident-related psychological distress, we find there is a complete inability to carry on any employment involving social interactions and concentration—key aspects of the reasonably suited employment found above. We also conclude that these psychological impairments are likely exacerbated by his chronic pain and emotions, findings that align with Dr. Jourbert's and Dr. Smith's well-founded conclusions. Overall, we find it is unreasonable to expect the applicant can return to work in reasonably suitable employment or self-employment if his mental health concerns persist.
34Finally, the respondent claims that an adverse inference should be drawn based on the applicant's decision not to obtain his own functional abilities evaluation. We see no reason why the applicant's choice not to obtain his own functional abilities evaluation would impact his entitlement to IRB, especially as we find that the evidence before us supports a conclusion that he has met his burden under s. 6(2) of the Schedule. We decline to draw an adverse inference.
35Overall, we are satisfied, on a balance of probabilities, that the applicant has demonstrated he sustained accident-related impairments that caused a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. As such, we conclude that the applicant has established entitlement to the IRB from November 26, 2022 to date and ongoing.
36Once again, we note that the parties agreed that they could address quantum following the release of this decision. Therefore, we are not addressing quantum in this decision.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits in accordance with s. 51.
ORDER
38For the above reasons, we find:
i. The applicant has established his entitlement to payment of the IRB for the period of November 26, 2022 to date and ongoing.
ii. The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.
Released: July 8, 2025
Craig Mazerolle Vice-Chair
Harouna Saley Sidibé Member