Latifa Bouamara v. Security National Insurance Company, 2026 CanLII 6221

Citation: Bouamara v. Security National Insurance Company, 2026 ONLAT 25-001894/AABS

Licence Appeal Tribunal File Number: 25-001894/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:

Latifa Bouamara

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Bernard Trottier

APPEARANCES:

For the Applicant: Joseph Zayouna, Counsel

For the Respondent: Geoffrey Keating, Counsel

Heard by videoconference: December 8-10, 2025

OVERVIEW

1Fatima Bouamara, the applicant, was involved in an automobile accident on August 22, 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 Security National 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 income replacement benefit (“IRBs”) in the amount of $400.00 per week from September 1, 2022 to date and ongoing?

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?

3During the hearing, the parties informed me that they resolved issue (ii) from the Case Conference Report and Order (“CCRO”) of June 23, 2025, namely the issue of a disputed amount for catastrophic impairment assessments conducted in 2023 and 2024. This issue is no longer before me as an issue in dispute.

RESULT

4The applicant is entitled to IRBs in the amount of $400.00 per week from September 1, 2022 to date and ongoing.

5The respondent is not liable to pay an award under s. 10 of Reg. 664 for unreasonably withholding or delaying payment of benefits.

6The applicant is entitled to interest on overdue payment of IRBs, based on the interest rates prescribed in s. 51 of the Schedule.

PROCEDURAL ISSUES

Late-filed authorities briefs

7On December 2, 2025, the applicant filed a Notice of Motion (“NOM”) to file her authorities brief after the deadline ordered in the CCRO, namely 21 days before the start of the hearing. The NOM submits that there is no prejudice to the respondent, because it has not submitted its own authorities brief as of the date of the NOM. The motion was heard orally at the start of the hearing.

8The respondent consented to the motion. As of the first day of the hearing, the Tribunal had not received either party’s authorities brief. I granted the motion, and I ordered that the parties exchange and file their authorities briefs before the start of the last day of the hearing on December 10, 2025.

Late-filed clinical notes and records

9At the start of the hearing, the applicant submitted an oral motion to allow her to file additional clinical notes and records (“CNRs”) of Dr. Sofian Al-Samak, chronic pain specialist, from August 23, 2024 to December 3, 2024. The applicant submitted that she had provided, in her previously filed evidence brief, Dr. Al-Samak’s CNRs from the date of the accident to August 15, 2024. The applicant submitted that the additional CNRs would fill a gap in the evidentiary record.

10The respondent opposed the motion because the additional CNRs were served on the Friday before the start of the hearing and it did not have time to review them, which would be prejudicial to its case.

11Under Rule 9.3, if a party fails to comply with the orders in the CCRO with respect to the exchange of documents, I may consider whether to admit them based on the reasons for non-compliance, the relevance of the documents and the extent to which prejudice to the parties can be mitigated.

12The applicant submitted that a portion of Dr. Al-Samak’s CNRs were provided late because she saw Dr. Al-Samak at two separate clinics, one in Hamilton and one in Mississauga, and there was some confusion on the part of the clinic when the CNRs were requested by the applicant. The applicant submitted, also, that Dr. Al-Samak is one of the applicant’s treating physicians whose visits are documented in the applicant’s OHIP summary (84 visits from November 19, 2020 to November 21, 2025), and that he would be appearing as a witness where the respondent would be able to cross-examine him. I find that the reason for non-compliance is credible, that the evidence is potentially relevant, and that prejudice to the respondent can be mitigated by its opportunity to cross-examine the witness. For these reasons, I granted the applicant’s motion to submit Dr. Al-Samak’s late-filed CNRs.

Late-filed attendant care assessment, letter from employer, résumé and video of the applicant

13At the start of the hearing, the applicant submitted an oral motion to file a Form 1 and insurer’s examination (“IE”) in-home attendant care assessment, by Curtis Wong, occupational therapist, dated April 15, 2025 and April 24, 2025, respectively, as part of a supplementary document brief served on December 8, 2025. The applicant submitted that the Form 1 and IE report are within the knowledge of the respondent and therefore the late filing presents no prejudice to the respondent. The respondent consented to the motion, and I granted the motion.

14The applicant submitted an oral motion to file a letter, dated December 4, 2025, from the applicant’s former employer, Pitney Bowes, indicating the applicant’s start and end dates of employment, and the applicant’s job title. The applicant submitted that the respondent had requested the applicant’s complete employment file at the case conference, and that Pitney Bowes late-delivered this letter in response to the request, hence its late filing. The respondent did not consent to the motion, indicating it requested the applicant’s complete employment file at the case conference, but that the applicant did not produce it according to the CCRO. The respondent asks that I draw an adverse inference from this non-compliance. I find that this document is a partial production of requested documentation, albeit late, and will defer any findings on an adverse inference to my analysis below. I find there is no prejudice to either party in allowing this document into evidence, because it comprises basic employment information. I granted the motion.

15The applicant submitted an oral motion to file the applicant’s résumé and a video of the applicant at a work function with her pre-accident employer, as part of a supplementary document brief served on December 8, 2025. The applicant submits that this evidence relates to the applicant’s status and rewards of her pre-accident employment, and that it is therefore relevant to the main issue in dispute. The respondent opposed the motion because it had not yet seen this evidence, with no time to review it, and the applicant’s reliance on this evidence would be prejudicial to its case. I find that, if the applicant intended to rely on this evidence, she had time to locate it and serve it on the respondent within the time frames established in the CCRO. I find that the late filing of this evidence does not afford the respondent the proper time to know the case it needs to meet, and the respondent would be prejudiced by its admission into evidence. For this reason, I denied the applicant’s motion to submit the résumé and video.

BACKGROUND

16The parties agreed on the following facts that were supported by documents in their evidence briefs.

17The applicant moved from Morocco to the USA in 1995. She speaks Amazigh, Arabic, French and English. She attended LaGuardia Community College in New York City, where she obtained a diploma in business. She moved to the Toronto region in 2004. From 2008 to 2020, the applicant worked as a bilingual English/French sales representative with Pitney Bowes, a company that provides solutions for shipping, mailing and office products. In February 2020, Pitney Bowes restructured its Canadian operations and the applicant’s position in Canada was eliminated. On the date of the accident, the applicant was not employed.

18On August 22, 2020, the applicant was the front seat passenger of a vehicle when it was hit at high speed from behind by another vehicle. Her right hand reportedly hit the dashboard. No emergency personnel attended the scene of the accident and the applicant went home that day. The applicant reported worsening pain to her right upper extremity and visited a walk-in clinic the next day. She was referred for x-rays which did not reveal any fractures.

19On October 30, 2020, the applicant submitted an Application for Accident Benefits/OCF-1. On January 18, 2022, Pitney Bowes provided an Employer’s Confirmation Form/OCF-2, indicating that the applicant was employed by them from February 20, 2008 to April 26, 2020. The OCF-2 stated that the applicant had worked 27 of the last 52 weeks before the accident.

20On August 29, 2022, the respondent determined that the applicant was not entitled to post-104-week IRBs, claiming that she did not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. After receipt of an accounting report dated June 24, 2024, the respondent paid the applicant’s entitlement to pre-104-week IRBs, based on her pre-accident income, minus Employment Insurance (“EI”) benefits received, plus interest.

21On October 30, 2024, the respondent determined that the applicant’s injuries met the criteria for catastrophic impairment (“CAT”) based on Criteria 6 and 7 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition. CAT is not an issue in dispute at this hearing.

22On January 29, 2025, the respondent maintained its position that the applicant was not entitled to post-104-week IRBs, claiming again that she did not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

ANALYSIS

Post-104-week IRBs: Test of eligibility

23To receive payment for post-104-week IRBs under s. 6(2)(b) of the Schedule, an 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 (the “complete inability” test).

24In the present matter, the parties agree there is no dispute over the quantum of IRBs. The applicant ceased to receive EI benefits on February 26, 2022. To the date of the hearing, the applicant had not received any employer-sponsored or government-sponsored disability benefits. The respondent submitted that, in the event the applicant is found to be entitled to post-104-week IRBs, it reserved its right to adjust the quantum of IRBs should there be any change in the applicant’s income from other sources.

25My decision regarding the complete inability test is directed by the Court of Appeal’s decision in Traders General Insurance Company v. Rumball, 2025 ONCA 656 (“Rumball”), at para. 42, where the Court further defined the factors I must consider under s. 6(2)(b):

In order to make this determination, the decision maker must consider all the relevant evidence and factors, including whether any alternative employment is employment in a competitive, real-world setting that is comparable to the insured’s former employment in nature, status and reward. These factors are not stand-alone components of the test but inform the evidence-based determination of whether the insured person has suffered a complete inability to engage in employment for which they are reasonably suited by education, training or experience.

26For this hearing, the dispute centers on whether the applicant’s impairments satisfy the complete inability test, including the factors outlined in Rumball.

Transferable skills analysis and accommodations

27The applicant testified that her pre-accident employment at Pitney Bowes involved contacting customers, via email and phone, regarding their needs around postage meters, copiers, fax machines, inks, packaging and related products. She testified that when she started with Pitney Bowes in 2008, she worked in a Pitney Bowes office, but by 2010 she worked almost exclusively from her home office. She had a defined sales territory and customer base, with a sales quota that she was expected to meet if she wanted to earn her commissions. She testified that the job was demanding and satisfying, and that she required organizational ability to manage her contacts, enter codes, create tickets, apply credits and discounts, generate quotes and place orders. She testified that she was successful in her role, and that as a reward for exceeding her sales quota she was often rewarded with employer-sponsored trips to destinations within North America as well as overseas.

28The respondent engaged Ruth Billet, vocational evaluator, to conduct a Transferable Skills Analysis, a Vocational Evaluation, and a Labour Market Survey, all with respect to the applicant’s claim for post-104-week IRBs. The results of these assessments are documented in reports dated January 22, 2025.

29The respondent directed me to the Transferable Skills Analysis that identified that the following occupations were possible for the applicant:

1. Customer service associate / information clerk / enquiries clerk (bilingual)
2. Interpreter

30The Transferable Skills Analysis indicated that the salary range for a customer service occupation in the Toronto region was $17.20 to $31.42 per hour. It did not provide a salary range for an interpreter occupation.

31The applicant submits that she suffers from complex regional pain syndrome (“CRPS”), resulting in the loss of the functional use of her right arm, wrist and hand, and concomitant psychological impairments, that meet the complete inability test. The applicant is right-hand dominant, and she submits that her injuries inhibit much of her day-to-day function. The applicant argues that, because of her physical and psychological impairments, she would not be employable in a real-world role in either employment described in the Transferable Skills Analysis. The applicant argues that a new employer would not be willing to provide accommodations that would allow the applicant to be able to perform these occupations to the employer’s requirements.

32At the hearing, Ms. Billet testified that she provides opinions on an injured person’s transferable skills, potential vocations and the labour market, but that in her scope of practice she defers to medical and psychological practitioners regarding functional capabilities.

33The respondent submits that the applicant’s transferable skills make her employable, and therefore she does not meet the complete inability test. The respondent directed me to the orthopaedic file review report of Dr. Oleg Safir, orthopaedic surgeon, dated January 22, 2025, where he opines:

Provided any impairment of function of the right upper extremity can be accommodated, I would consider Ms. Bouamara to not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. I would agree with the employment options identified on the Transferable Skills Analysis.

34The applicant testified that in addition to her regular appointments with Dr. Al-Samak, her family physician and her physiotherapist, she was also seeing a registered social worker who helps her manage her schedule and transportation to various appointments. She testified that she also has a personal support worker who assists her with personal care activities, cooking and cleaning. She testified that, because of her pain, she is unable to sleep more than 4 to 4.5 hours per night, and that she is generally tired during the day. She testified, further, that her pain medications lead to drowsiness. The applicant argues that the fatigue associated with her accident-related impairments and the time required to manage her treatment would prevent her from obtaining suitable full-time employment in the occupations described in Ms. Billet’s report.

35I find that neither s. 6(2)(b) of the Schedule nor Rumball identifies potential future accommodations as a factor in determining whether an injured person satisfies the complete inability test, although both parties made submission on this topic. I find that neither the respondent nor the applicant have identified what specific accommodations, either through flexible work arrangements or technology, could be provided for the roles proposed in the Transferable Skills Analysis. While the onus is on the applicant to prove entitlement to benefits, I find that the onus does not extend to seeking out potential future jobs and employers and demonstrating whether accommodations could be provided such that she could be employed in suitable work.

36I find that the applicant’s loss of the functional use of upper right extremity, as well as her fatigue, medications and treatment schedule, would prevent her from fulfilling the requirements of full-time employment in suitable work, such as the occupations described by Ms. Billet.

37I therefore turn to an analysis of the nature, status and rewards of potential future employment, as well as the extent of the applicant’s physical and psychological impairments, to determine whether the applicant has demonstrated that her impairments prevent her from engaging in any part-time employment for which she is reasonably suited by education, training or experience.

Employment with comparable nature, status and rewards

38The applicant directed me to her income tax documents that revealed that her pre-accident income, consisting of salary and commissions from her job with Pitney Bowes, was $88,629 in 2017, $102,595 in 2018, and $107,032 in 2019. The applicant argues that the occupations proposed in Ms. Billet’s Transferable Skills Analysis report have compensation well below that earned by the applicant before the accident, and that they are therefore not “suitable” employment.

39The applicant argues that suitable employment has to be comparable based on status and rewards, citing the Ontario Court of Appeal’s decision in Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479 (“Burtch”).

40The respondent argues that focusing on the applicant’s pre-accident income is misleading, because on the day of the accident, the applicant was not working. The respondent submits that the applicant’s pre-accident employment was in a very specialized type of sales, with about a third of her income based on sales commissions. The respondent argues that reasonably suitable employment would focus on her base salary, and not on her sales commission income. The respondent argues that, based on her skills, the applicant could find reasonable employment, even if her overall income might be less than what she earned pre-accident.

41The respondent submits that it does not have a copy of the applicant’s employment file from Pitney Bowes in evidence, and that I should disregard the applicant’s statement that she won trips and other work awards, because it is unsupported by the evidence.

42I find that the applicant has provided sufficient evidence of her pre-accident employment, including her tax returns from 2017 to 2024, to demonstrate that she was well compensated before the accident. I do not make an adverse inference from her failure to provide the complete employment file from Pitney Bowes.

43I find that Burtch is distinguishable from the present matter, because it focuses on the time and cost of re-training for a new occupation for which the injured person would be reasonably suited by education, training or experience. The parties in the present matter did not raise the issue of re-training specifically, although it is a factor for my consideration.

44I am directed by the decision in Rumball, which considers the analysis in Burtch and concludes that the Schedule does not require that the proposed employment be in a competitive, real-world setting and commensurate in terms of nature, status and reward to the prior employment. As the Court stated in Rumball at para. 31: “these factors are necessary and relevant to the analysis, but they are not stand-alone parts of the test. They are considerations, not requirements.”

45I find that the applicant was credible in her testimony that she would prefer the autonomy and rewards associated with being gainfully employed over the comparatively modest compensation available through IRBs under the Schedule.

46I find that whether the applicant’s compensation was from her base salary or from sales commissions is not relevant in this matter, just as it would not be relevant for other pre-accident jobs that had a mix of fixed and variable compensation, if that compensation was reported for tax purposes.

47I found, previously, that the applicant has demonstrated that her accident-related impairments would prevent her from obtaining full-time employment in the occupations described in the Transferable Skills Analysis. The parties made no submissions on the number of hours per week the applicant could work.

48I find that part-time employment of a similar nature to the applicant’s pre-accident employment, in the compensation range described in the Transferable Skills Analysis, would not provide the applicant with compensation that is comparable in status and rewards to her pre-accident employment. To illustrate, if I consider the compensation ranges of the Transferable Skills Analysis for the customer service occupation, and assuming the applicant could work 20 hours per week, I estimate that she could earn from $17,888 to $32,677 per year (based on being paid for 52 weeks per year, with no variable compensation or collateral benefits.) I consider this level of compensation, even with different assumptions regarding hours worked, is not comparable in status and rewards to the applicant’s pre-accident employment.

49I now turn to an analysis of the applicant’s physical and psychological impairments, to determine whether the applicant has demonstrated that her impairments prevent her from engaging in any employment, even part-time, for which she is reasonably suited by education, training or experience.

The applicant’s physical and pain impairments

50I find that the applicant’s physical impairments, including her CRPS, prevent her from engaging in any employment, even part-time, for which she is reasonably suited by education, training or experience.

51The applicant submits that, due to the accident, she developed CRPS, resulting in a complete loss of functional use of her upper right extremity. The applicant submits, further, that there is significant agreement between the applicant’s assessors and treating physicians that the injuries are debilitating and permanent.

52The applicant directed me to the s. 25 report of Dr. Kevin Hsu, physiatrist, dated May 3, 2024, where he concludes that, given the chronicity of her symptoms, “she will be left with permanent impairment that will limit her function.” In the opinions and diagnoses section of his report, Dr. Hsu states that his formal diagnostic impression of the applicant was sprain/strain with chronic pain to the cervical spine, right shoulder, right elbow and right wrist, with CRPS of the upper right extremity.

53In his report, Dr. Hsu observed that, more than 2.5 years post-accident, the applicant had restriction in her range of motion, along with “severe tenderness on palpation, abnormal sensation, colour change, swelling and temperature change in the upper right extremity”. At the hearing, Dr. Hsu testified that the applicant satisfied all four of the Budapest criteria (sensory, vasomotor, sudomotor and motor) and that the applicant had clear, objective findings of CRPS. Dr. Hsu opined further that the applicant would not be able to fill her previous role in sales, because her CRPS would prevent her from being able to use a computer, and she would not be able to concentrate for long time periods.

54Dr. Hsu testified that his CRPS diagnosis was a confirmation of CRPS diagnoses made previously by her treating physician, Dr. Sofian Al-Samak, chronic pain specialist, and a physician to whom she was referred, Dr. Ammar Al Khudairy, physical medicine and pain medicine specialist.

55At the hearing, Dr. Al-Samak testified that the applicant suffers from chronic, severe, persistent pain, specifically CRPS. Dr. Al-Samak testified that CRPS is an uncommon condition, and that in his practice he might see one or two cases per year.

56The applicant submitted that she visited Dr. Al-Samak 84 times from November 19, 2020 to November 21, 2025. Dr. Al-Samak testified that, currently, he sees the applicant every one to two weeks, because she suffers from swelling in the lower arm and hand, and that even a simple touch or atmospheric changes can induce severe pain. He testified that he has no records of improvement to the applicant’s symptoms, and that he does not expect the pain to go away. He testified that her CRPS treatment consists of pain injections that he administers, along with medications managed by her family physician, and physiotherapy provided by a clinic. At the hearing, he opined that this treatment assists the applicant in managing her pain, but that it is non-curative, and that he could not see how the applicant could be fit for any kind of sustainable employment.

57Dr. Al-Samak testified that he referred the applicant to Dr. Jamsheed Desai, neurologist, who examined the applicant on September 30, 2021. The applicant directed me to Dr. Desai’s consultation note, where he opined that a neurological diagnosis could not be established, and that the applicant may fulfill the Budapest criteria for CRPS and, as such, follow-up with her pain specialist was recommended.

58Dr. Al-Samak testified that he referred the applicant to Dr. Paul Carter, hand/plastic surgeon, who examined the applicant on November 29, 2022. The applicant directed me to the consultation note of Dr. Carter, who did not feel that a surgical intervention was in the applicant’s interest because there were no signs of compression neuropathy, and that a pain clinic and physiotherapy were better courses of treatment.

59The applicant directed me to the physiatry consultation notes of Dr. Al Khudairy, from his examination of the applicant on September 1, 2023, where he noted that she was unable to use her right arm because of pain, and he confirmed the applicant’s diagnosis of CRPS.

60The applicant directed me further to the insurer’s examination (“IE) report of Dr. Safir, who conducted his examination of the applicant, as part of a multidisciplinary CAT assessment. In his report dated October 22, 2024, Dr. Safir noted that the applicant suffered from generalized weakness in her upper right extremity, with sensation increased over the entire right arm, most likely related to CRPS. In his report, Dr. Safir noted signs of CRPS, including increased redness, temperature, general swelling and sweating.

61Lastly, the applicant directed me to a report from Dr. Hsu dated April 3, 2025, in rebuttal to an IE report from Dr. Safir on the subject of post-104-week IRB entitlement (dated January 22, 2025), where he opines that the applicant meets the complete inability test because of her chronic pain syndrome, and concomitant cognitive and affective symptoms that result in functional limitation.

62The respondent submits that, while many medical practitioners have diagnosed the applicant with CRPS and chronic pain, none of them state that her condition satisfies the complete inability test for entitlement to post-104-week IRBs. The respondent argues that the applicant has not met her onus of demonstrating that her pain condition could not be accommodated or that the applicant could work part-time, so that she could engage in employment for which she is reasonably suited by education, training or experience.

63In Dr. Safir’s IE report of January 22, 2025, he opined that, provided any impairment of function of the right upper extremity can be accommodated, he would consider the applicant did not suffer a complete inability. At the hearing, Dr. Safir indicated that he had identified no range of motion difficulties with respect to the applicant’s upper left extremity, with her legs or with her spine. For this reason, Dr. Safir opined that some functions can be performed and that, from an orthopaedic perspective, the applicant did not satisfy the complete inability test.

64The respondent submits that Dr. Hsu was the independent s. 25 medical evaluator, for whom the applicant provided an Acknowledgement of Expert Duty (“AED”) form and curriculum vitae (“CV”) for the hearing, while Dr. Al-Samak was the treating physician who did not provide an AED or CV. For this reason, the respondent argues that the Tribunal should prefer the opinions of Dr. Hsu over those of Dr. Al-Samak and other orthopaedic and pain specialists the applicant relies upon.

65The respondent submits that Dr. Hsu, in his orthopaedic assessment report of May 3, 2024, diagnosed the applicant with CRPS and chronic pain, but not with a generalized chronic pain syndrome. The respondent argues that Dr. Hsu never concluded that the applicant’s CRPS in her upper right extremity could not be accommodated. The respondent submits that Dr. Hsu again does not state, in his physiatry paper review of December 20, 2024, that the applicant’s CRPS could not be accommodated.

66The respondent directed me to the IE report of Dr. Jamie Rusen, orthopaedic surgeon, who assessed the applicant with respect to her entitlement to post-104-week IRBs in 2022. In his report dated August 25, 2022, Dr. Rusen opined that, from an orthopaedic perspective, the applicant did not meet the complete inability test, although she did require ongoing restrictions to her upper right extremity. He opined further that the applicant would be able to resume any sedentary vocational options, as suggested by the insurer’s vocational assessor.

67I find that the applicant has demonstrated that she suffers from CRPS that restricts her ability to engage in employment involving the prolonged use of a keyboard and other electronic devices, considering the loss of function in her right hand. I find that the opinions of Dr. Hsu are corroborated by other medical specialists, including Dr. Safir, that the applicant’s injuries related to CPRS are severe and likely permanent. For these reasons, I find that the applicant’s functional impairments would prevent her from engaging in the occupation of customer service associate, or information/enquiries clerk, as outlined in the Transferable Skills Analysis, either full-time or part-time.

68I find that the applicant has demonstrated that her CPRS, and the medications required to manage her pain, cause ongoing fatigue that would make her unable to sustain the concentration required to work as an interpreter, even on a part-time basis. I note that the applicant is not certified as an interpreter, and that she would probably require training and certification to obtain employment in that field. In addition, I find that the applicant’s evidence, that her CPRS can flare up because of unpredictable circumstances, including slight touches or atmospheric changes, is credible because of the corroborating medical evidence presented at the hearing. For these reasons, I find that the applicant has demonstrated that she would not be able to work reliably as an interpreter, because her work could be interrupted unpredictably. Based on these factors, I find that the applicant’s physical and pain impairments satisfy the complete inability test.

The applicant’s psychological impairments

69I find that the applicant’s psychological impairments, in addition to her physical pain-related impairments, prevent her from engaging in any employment for which she is reasonably suited by education, training or experience.

70The applicant submits that her psychological impairments, in addition to her CRPS, satisfy the complete inability test. The applicant argues that her ongoing pain, and the medications required to manage it, affect her cognitive function and concentration, which leads to her complete inability to engage in employment.

71Dr. Giselle Braganza, psychologist and neuropsychologist, testified that she assessed the applicant on December 23, 2023 and provided a s. 25 report dated May 3, 2024. She then performed a paper review assessment of the applicant with respect to post-104-week IRBs, and she provided her opinions in a report dated December 20, 2024. Lastly, she provided a rebuttal of the IE assessment of Dr. Ahmed Jwely, psychiatrist, in a rebuttal report dated April 3, 2025. In her paper review report of December 20, 2024, Dr. Braganza indicated that the applicant met, provisionally, the following Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, Text Revision (“DSM-5-TR”) diagnoses:

1. Major Depressive Disorder
2. Unspecified Anxiety Disorder
3. Somatic Symptom Disorder with Predominant Pain

72Dr. Braganza testified that, as part of her paper review assessment for her report dated December 20, 2024, she reviewed the files, among others, of the following psychological assessors and treatment providers:

1. Dr. Shawn Vasdev, psychiatrist, consultation note, January 18, 2021;
2. Dr. Sadiq Hasan, psychiatrist, s. 25 psychiatric assessment, May 8, 2021; and
3. Dr. Tony Toneatto, psychologist, progress reports, November 7, 2021; June 20, 2022 and May 5, 2023.

73Dr. Braganza testified that there may be some discrepancies between psychological assessors, because they assess a patient at a point in time, but the assessors all provide the same general DSM-5-TR diagnoses.

74The applicant directed me to Dr. Braganza’s report of December 20, 2024, where she maintained her previous opinion from her report of May 3, 2024, as follows:

Ms. Bouamara’s psychological symptoms negatively impact upon her ability to access a workplace, maintain regular attendance, participate in the physical, emotional, and cognitive demands of any job, maintain attention and concentration for extended periods, work at a competitive pace, complete tasks in a timely manner, make decisions, manage daily stressors, and complete a normal workday/workweek without interruptions from psychologically-based symptoms. As such, not only would her symptoms impact upon the array of activities in which she could participate, but they would also affect her pace, the quality of her performance, the duration of her ability to engage in work-like demands, and her attendance in the workplace.

75Dr. Braganza testified that, as part of her assessment, the applicant did not pass certain validity factors. Dr. Braganza testified that psychological validity tests are normalized around Western culture, and that the applicant’s cultural background could generate the appearance of catastrophizing and exaggeration of symptoms, hence the qualification of her diagnosis as “provisional”. In her report of December 3, 2024, Dr. Braganza noted that the psychiatric assessment of Dr. Hasan indicated valid results.

76The respondent submits that the applicant’s psychological injuries are not an independent psychological condition, arguing that the applicant’s physical pain is causing her mental health issues. For this reason, the respondent argues any findings on whether the applicant meets the complete inability test should focus on the applicant’s pain condition specifically.

77Dr. Ahmed Jwely, psychiatrist, testified that he performed an IE of the applicant regarding her eligibility for post-104-week IRBs on July 26, 2024, including clinical interviews and psychometric testing, and, after completing a multidisciplinary file review, provided his opinions in a report dated January 22, 2025. In his assessment, Dr. Jwely reviewed most of the same documents reviewed by Dr. Braganza, as well as the following (among others):

1. Dr. Amena Syed, psychologist, IE post-104-week IRB assessment, August 25, 2022;
2. Dr. Nagib Yahmad, neurologist, IE CAT assessment, October 22, 2024;
3. Dr. Konstantine Zakzanis, neuropsychologist, IE CAT assessments, July 10, 2024 and October 22, 2024;
4. Ms. Ranya Ghatas, occupational therapist, IE in-home CAT assessments, October 22, 2024.

78In his report, Dr. Jwely indicated that the applicant met the following DSM-5-TR diagnoses:

1. Unspecified depressive disorder – chronic (mild-moderate)
2. Somatic symptom disorder – chronic

79In response to the referral question on eligibility for post-104-week IRBs, Dr. Jwely opined that:

From a psychiatric perspective the claimant does not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.

80I find that Dr. Jwely’s IE report of January 22, 2025 provides little explanation of how he arrives at his conclusion. Although he provides a thorough review of his prior CAT assessment, as well as those of the other IE assessors, I find that Dr. Jwely does not describe how the applicant’s diagnoses would or would not affect her ability to engage in any employment, or how she should be able to engage in the employment options outlined in the Transferable Skills Analysis. Of the two summary psychological opinions presented at the hearing, that of Dr. Braganza and that of Dr. Jwely, I prefer that of Dr. Braganza because she describes the impacts of the applicant’s psychological symptoms on her ability to function in a workplace.

81I find that the applicant’s psychological impairments, combined with her persistent and permanent pain, affect the applicant’s cognitive function and concentration, which would prevent her from engaging in full- or part-time employment as an interpreter. Based on the evidence before me, I find that the applicant has demonstrated that, from a psychological perspective, she meets the complete inability test.

Summary of findings on entitlement to post-104-week IRBs

82I find that the applicant’s loss of the functional use of her upper right extremity, as well as her fatigue, medications and treatment schedule, would prevent her from fulfilling the requirements of full-time employment in suitable work.

83I find the level of compensation of part-time suitable work, even if she could obtain it, is not comparable in status and rewards to the applicant’s pre-accident employment.

84I find that the applicant’s functional impairments would prevent her from engaging in the occupation of sales, customer service associate, or information/enquiries clerk, either full- or part-time.

85I find that the applicant’s psychological impairments, combined with her persistent and permanent pain, affect the applicant’s cognitive function and concentration, which would prevent her from engaging in full- or part-time employment as an interpreter.

86For the reasons above, I find that the applicant has demonstrated on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. Therefore, the applicant is entitled to post-104-week IRBs.

Award

87The applicant sought an award under s. 10 of Reg. 664. Under s. 10 of the Regulation, 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.

88In general, the threshold for the Tribunal to grant an award under s. 10 is whether there was unreasonable behaviour in withholding or delaying benefits, which amounts to the insurer being excessive, imprudent, stubborn, inflexible, unyielding and immoderate. See, for example, the Tribunal’s decision in S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT).

89The applicant argues that the respondent’s adjuster misrepresented the findings of the IE assessors in denying the applicant’s post-104-week IRBs. The applicant directed me to the explanation of benefits (”EOB”) letter of January 29, 2025, where it states:

From an Orthopedic perspective and review of the concurrent reports the Orthopedic Surgeon [Dr. Safir] determined that any impairment of the upper right extremity could be accommodated and therefore, you do not suffer a complete inability to engage in any employment for which you are reasonable suited by education, training or experience. Dr. Safir agrees with the employment options identified in the Transferable Skills Analysis report.

90The applicant argues that the EOB letter purposely misinterprets the conclusion of Dr. Safir described in his report of January 22, 2025, where he states that “Provided any impairment of function of the right upper extremity can be accommodated, I would consider Ms. Bouamara to not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience”.

91The applicant argues that the insurer was unreasonable when it changed the meaning of Dr. Safir’s conclusion from “provided any impairment of function…can be accommodated” to say that Dr. Safir “determined that any impairment…could be accommodated”.

92The respondent submits that the opinions of the numerous IE assessors were compatible with each other, both when post-104-week IRBs were denied in 2022 and again in 2025. The respondent submits that Ms. Billet’s evidence was clear that the proposed roles would not require use of the applicant’s upper right extremity.

93The respondent submits that its reliance on the opinions of its IE assessors in denying IRBs was not unreasonable, or that it was the type of behaviour that warranted an award under s. 10. The respondent argues that an adjuster is not a medical expert, and that the balance of medical opinions before the adjuster, not just that of Dr. Safir, was that the applicant was not entitled to post-104-week IRBs.

94I find that the respondent, through its syntax in the EOB letter, changed the meaning of Dr. Safir’s conclusion. However, I find that the respondent’s denial of post-104-week IRBs does not meet the threshold of being excessive, imprudent, stubborn, inflexible, unyielding and immoderate, because the respondent relied upon the opinions of several experts, whose credentials were accepted by the applicant, and who opined that the applicant was not entitled to IRBs. I do not find that the respondent was “unreasonable” in reaching that conclusion in its EOB letter. For these reasons, I deny the applicant’s claim for an award under s. 10 of the Regulation.

Interest

95Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Under s. 51, in a dispute regarding an insured person’s entitlement to statutory accident benefits, interest on the benefits in dispute is calculated at the prejudgment interest rate described in subsection 128(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, that is used for past pecuniary loss, and is payable for the period that begins on the date on which an application to the Tribunal is brought under subsection 280(2) of the Insurance Act, and ends on the date a settlement is reached or a decision is issued that finally disposes of the dispute.

96The respondent submits that the application to the Tribunal for the IRBs in the current dispute was filed on March 12, 2024, which was then subsequently withdrawn pending further examinations. The respondent argues that, in the event the applicant is found entitled to IRBs, the applicable date for calculating interest is March 12, 2024. The respondent directed me to the file number of the previous Tribunal application and I confirmed that is the date on which the application to the Tribunal was brought. The applicant did not make submissions on the applicable date on which IRBs would be payable.

97I find that, under s. 51, the applicant is entitled to interest at the rate described in subsection 128(3) of the Courts of Justice Act, payable from March 12, 2024 to the date of this decision, because March 12, 2024 is the date on which the application to the Tribunal for this matter was first brought.

ORDER

98I find as follows:

i. The applicant is entitled to an IRB in the amount of $400.00 per week from September 1, 2022 to date and ongoing.

ii. The respondent is not liable to pay an award under s. 10 of Reg. 664 for unreasonably withholding or delaying payment of benefits.

iii. The applicant is entitled to interest on overdue payment of IRBs, based on the interest rates prescribed in s. 51 of the Schedule, payable from March 12, 2024 to the date of this decision.