Soltani v. Economical Mutual Insurance Company, 2025 CanLII 99887

Citation: Soltani v. Economical Mutual Insurance Company, 2025 ONLAT 23-013036/AABS

Licence Appeal Tribunal File Number: 23-013036/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:

Nazila Soltani

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Monika Korona, Counsel

HEARD: By way of written submissions

OVERVIEW

1Nazila Soltani, the applicant, was involved in an automobile accident on March 22, 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 the respondent, Economical Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

Preliminary issue

2The preliminary issue in dispute is:

1. Is the applicant barred from proceeding to a hearing for the following benefit: IRB, because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?

Substantive issues

3The substantive issues in dispute are:

1. Is the applicant entitled to an income replacement benefit(“IRB”)in the amount of $400.00 per week from July 11, 2023 to date and on-going?
2. Is the applicant entitled to $114.81 for Medication, submitted on a claim form (OCF-6) dated August 15, 2022?
3. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

Preliminary issue

4I find that the applicant is not statute barred from bringing her application for IRB benefits.

Substantive issues

5I find that:

1. The applicant is not entitled to an IRB.
2. The applicant is not entitled to $114.81 for medication.
3. The applicant is not entitled to an award.
4. The applicant is not entitled to interest.

PROCEDURAL ISSUE

6The respondent’s request that the s.25 psychological assessment report of Dr. Hadi Bahiraei be struck from the record is denied.

7In its submissions, the respondent submits that Dr. Bahiraei’s s. 25 report, dated April 30, 2024, is inadmissible because the applicant did not disclose the report in accordance with the timelines set out in the Case Conference Report and Order (CCRO). The respondent argues that it received the report for the first time in the applicant’s submissions which did not allow sufficient time for the respondent to respond, and requests that it be struck from the record.

8The applicant argues that the report was faxed to the respondent within the timelines on May 8, 2024, and submitted a copy of the report with a fax cover sheet addressed to the respondent dated May 8, 2024 with a time of 16:32:30. There was no separate fax confirmation sheet indicating that the fax was successfully sent attached to the report.

9While I am not persuaded that the respondent actually received Dr. Bahiraei’s report by fax on May 8, 2024, the respondent has not established that it was prejudiced by any late disclosure because the respondent did address the report in its submissions.

10Therefore, I decline to strike Dr. Bahiraei’s report from the record.

ANALYSIS

Preliminary Issue:

11I find that the applicant is not barred from bringing their application for an IRB from July 11, 2023 to date and ongoing.

12The respondent submits that the applicant should be statute barred from bringing her application for an IRB from July 11, 2023 to date and ongoing, because the applicant did not attend s.44 examinations requested on November 21, 2022. The November 21, 2022 notice of examination(“NOE”) included three s.44 examinations on December 13, 2022, December 19, 2022 and December 20, 2022.

13In her reply submissions, the applicant argues that she provided reasons for her non-attendance at the examinations, and that she attended all of the scheduled examinations prior to the hearing. The applicant submitted an email dated December 13, 2022 informing the respondent that the applicant had missed the s.44 examination earlier that day because neither the transportation nor an interpreter had not been booked by the respondent. The applicant’s counsel sent an email November 2, 2023 explaining that the applicant had missed the December 19, 2022 and December 20, 2022 examinations and requesting that the s.44 examinations be rescheduled with an interpreter present.

14As the respondent submits that it did reschedule the examinations, and that the applicant attended all of the examinations, I find that the applicant is not barred from bringing her application.

Substantive Issues

Is the applicant entitled to an IRB in the amount of $400.00 per week from July 11, 2023 to date and on-going?

15I find that the applicant has not established on a balance of probabilities that she is entitled to an IRB from July 11, 2023 and ongoing.

16To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, 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.

17To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate 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 (“post-104 test”).

18The applicant argues that she is entitled to an IRB from July 11, 2023 to date and ongoing because her accident-related injuries have had an impact on her ability to work more than six to seven hours per day, since her return to work six months after the accident. The applicant relies on the Disability Certificate (“OCF-3”) of Dr. Nader Raffi, chiropractor, dated April 9, 2022 and the s. 25 psychological reports of Dr. Sedigheh Naisi, psychologist, dated August 9, 2022, and Dr. Hadi Bahiraei, Psychologist, dated April 30, 2024.

19The respondent argues that the applicant is not entitled to either a pre-104-week IRB or a post-104-week IRB because she returned to her previous employment six months after the accident. The respondent relies on the s. 44 reports of Dr. Rod Day, psychologist, dated March 15, 2024 and June 20, 2024, the general practitioner s. 44 reports of Dr. Hashmat Khan, physician, dated March 15, 2024 and June 20, 2024, the functional assessment report of Dr. Paul Cha, functional abilities assessor, and the transferrable skill analysis/vocational report and labour marked survey reports of Denys Remedios, forensic vocational specialist, dated June 20, 2024.

Pre-104-week IRB

20I find the evidence does not establish on a balance of probabilities that the applicant meets the test for a pre-104-week IRB after July 11, 2023.

21The applicant submits that she is suffering from psychological symptoms and chronic pain from her soft-tissue injuries as a result of the accident, which have an impact on her ability to continue driving for Uber.

22The respondent argues that the applicant has not met her onus to prove that she has a substantial inability to perform the essential tasks of her employment and that Dr. Day and Dr. Khan both opined that there were no restrictions or limitations to delay or prevent the applicant from returning to work in their respective s. 44 reports.

23While I accept that the applicant has a psychological impairment, I am not persuaded that the impairment renders her substantially unable to work at her previous employment.

24I find that the s.25 reports of Dr. Naisi and Dr. Bahiraei, are not persuasive with respect to the applicant’s ability to work. Dr. Naisi’s August 9, 2022 report was silent on the issue, referencing only the applicant’s previous employment as an Uber driver. In his April 30, 2024 psychological assessment report, Dr. Bahiraei opined that the applicant suffered a substantial inability to perform all employment related tasks, and that “intensive treatment is needed before determining her capacity to return to any form of work,” which is inconsistent with his comments earlier in the report that the applicant was experiencing challenges in working longer than six or seven hours per day since she returned to work 18 months earlier. As a result, I find Dr. Bahiraei’s report to be internally inconsistent, particularly with respect to the central question of whether the applicant is substantially unable perform the essential tasks of her employment, and assign the report no weight.

25I am persuaded by the s.44 reports of Dr. Day, who conducted two separate s. 44 examinations of the applicant on January 24, 2024 and June 4, 2024, both of which consisted of a review of medical documentation, a clinical interview, and psychometric testing. I find that Dr. Day’s reports are thorough and internally consistent. In his March 15, 2024 s. 44 report, Dr. Day diagnosed the applicant with Major Depressive Disorder – Moderate with anxious distress and Specific Phobia, Situational Type (driver and passenger related). Dr. Day discussed the applicant’s driving concerns in detail, including with respect to symptoms she reported experiencing while working as a full-time driver for Uber, and noted that she avoided driving in snow and rain. Dr. Day did not opine on the applicant’s ability to work, and his sole recommendation is that she undergo a course of psychological treatment.

26After her second s.44 examination, on June 4, 2024, Dr. Day opined that while some of her other symptoms had worsened, the applicant’s phobia symptoms had improved to the point that she no longer met the criteria for a diagnosis of Specific Phobia related to driving and noted that the applicant was driving in all driving conditions and continued to drive full time for Uber. Dr. Day also noted a significant improvement in her depressive symptoms and diagnosed her with Major Depressive Disorder – Mild with anxious distress, and opined that there were “no limitations from a psychological perspective” that would limit the applicant from working.

27The applicant further submits that in his OCF-3, Dr. Raffi indicated that the applicant was substantially unable to perform the tasks of her employment, however the OCF-3 is dated April 9, 2022, and Dr. Raffi also indicated that the expected duration of the disability was nine to twelve weeks. I find that the OCF-3 is not persuasive evidence of the applicant’s circumstances in the relevant time period, because the applicant is seeking a determination of whether she is eligible for an IRB from July 11, 2023, which is more than sixty weeks after the OCF-3 was submitted.

28Finally, the applicant has identified the essential tasks of her employment as an Uber driver, but she has not identified the essential tasks of her employment that she is now substantially unable to perform or the extent to which she is unable to perform them.

29For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that she has a substantial inability to perform the essential tasks of her employment.

30Accordingly, the applicant is not entitled to a pre-104-week IRB.

Post-104-week-IRB

31I find that the evidence does not establish on a balance of probabilities that the applicant is entitled to a post-104-week IRB.

32The applicant has not made any submissions or directed me to any medical or other evidence to suggest that the applicant meets the strict eligibility criteria for a post-104-week IRB. Further, in her submissions, the applicant confirms that she has been working in her previous role since six months after the accident, which is inconsistent with a complete inability to engage in any employment or self-employment.

33As such, I find that the applicant has not met her onus to prove on a balance of probabilities that she suffers a complete inability to engage in employment or self-employment to which she is reasonably suited by education, training or experience.

34For the reasons above, I find that the applicant has not met her onus to prove on a balance of probabilities that she is entitled to an IRB.

Is the applicant entitled to $114.81 for medication, submitted on a claim form (OCF-6) dated August 15, 2022?

35I find the applicant is not entitled to payment of $114.81 submitted on the OCF-6 dated August 15, 2022.

Reasonable and Necessary

36The applicant submits that she is entitled to payment for the OCF-6 for two prescriptions for a urea test and Rabeprazole Sodium. The respondent counters that these prescriptions are not accident-related and therefore not payable.

37As the applicant has not pointed or directed me to any evidence to corroborate that the prescriptions in question are reasonable and necessary as a result of the accident, I find that the applicant has not met her onus to prove on a balance of probabilities that she is entitled to reimbursement for the medication expense.

S. 38(8)

38The applicant further argues that the OCF-6 is payable under s. 38(11) of the Schedule because the respondent did not provide sufficient medical reasons for its denial to comply with s. 38(8). The respondent argues that it requested further information from the applicant that the medication was prescribed to treat the applicant’s accident-related injuries.

39As the applicant did not direct me to a denial letter or Explanation of Benefits for the OCF-6, I do not have sufficient information to determine whether it is compliant with s.38(8). Therefore, I find that the applicant is not entitled to the OCF-6 as she has not satisfied her onus on a balance of probabilities.

Interest

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are due, no interest is owing.

Award

41The 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.. As no payments were unreasonably withheld or delayed, the applicant is not entitled to an award.

ORDER

42Include a brief statement of the Tribunal’s final Order(s):

1. The applicant is not entitled to an IRB.
2. The applicant is not entitled to $114.81 for medication.
3. The applicant is not entitled to an award.
4. The applicant is not entitled to interest.