Zeineddine v. Economical Mutual Insurance Company, 2025 CanLII 13542

Zeineddine v. Economical Mutual Insurance Company

Citation: Zeineddine v. Economical Mutual Insurance Company, 2025 ONLAT 22-011827/AABS

Licence Appeal Tribunal File Number: 22-011827/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:

Ahmed Zeineddine

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Miryam Gorelashvili, Counsel

For the Respondent: Stephen Whibbs, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ahmed Zeineddine, the applicant, was involved in an automobile accident on January 20, 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, Economical Mutual 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 an income replacement benefit in the amount of $170.18 per week from February 16, 2021 ongoing?

ii. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?

iii. Is the applicant entitled to $2,793.49 for occupational therapy services, proposed by Vitality Rehabilitation Group in a treatment plan/OCF-18 (“plan”) dated June 23, 2020?

iv. Is the applicant entitled to $1,247.42 for occupational therapy services, proposed by Vitality Rehabilitation Group in a treatment plan dated January 20, 2021?

v. Is the applicant entitled to $1,995.32 for psychological services, proposed by Capital Region Psychological Services in a treatment plan dated July 29, 2020?

vi. Is the applicant entitled to $1,810.39 for massage therapy services, proposed by Prime Physio Plus in a treatment plan dated July 23, 2020?

vii. Is the applicant entitled to $4,741.00 for social rehabilitation counselling services, proposed by Vitality Rehabilitation Group in a treatment plan dated June 23, 2020?

viii. Is the applicant entitled to $2,658.33 for accounting and forensics services related to IRB calculations, proposed by ADS Forensics, dated August 16, 2022?

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

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

RESULT

3I find that the applicant does not qualify for an IRB under s. 5(1) of the Schedule.

4The applicant has proven the diagnosis of a concussion and is removed from the Minor Injury Guideline.

5The applicant has proven entitlement the following disputed treatment plans:

i. $2,783.49 for occupational therapy services as proposed in an OCF-18 dated June 23, 2020;

ii. $1,995.32 for a psychological assessment proposed in an OCF-18 dated July 29, 2020;

iii. $1,810.39 for massage therapy proposed in an OCF-18 dated July 23, 2020; and

iv. $4,741.00 for social rehabilitative counselling proposed in an OCF-18 dated June 23, 2020.

6The applicant is entitled to $2,658.33 for accounting services proposed on August 16, 2022.

7The applicant is not entitled to $1,247.42 of occupational therapy services as proposed in an OCF-18 dated June 23, 2020.

8The applicant is entitled to $2,658.33 for an accountant’s report to support IRB calculations.

9The applicant is entitled to interest as per s.51 of the Schedule.

10The applicant is not entitled to an award under s.10 of Reg 664.

ANALYSIS

The applicant does not qualify for an IRB under s. 5(1) of the Schedule

11To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident or employed at least 26 weeks during the 52 weeks before the accident, and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment.

12The parties agree that the applicant was not employed at the time of the accident and only employed for 7 of the 52 weeks before the accident. Therefore, he does not meet the eligibility requirements under section 5(1).

13Section 5(1)(2) sets out eligibility criteria for a self-employed applicant. The applicant must be self-employed at the time of the accident to qualify for an IRB based on their self-employment. The parties agree, the applicant was not self-employed at the time of the accident, having ceased being self employed on November 29, 2019.

14The applicant submits that his 39 weeks of self-employment should count towards the 26-week eligibility period outlined in s. 5(1) of the Schedule.

15The applicant has not provided any authorities which support this position.

16The respondent submits that the eligibility criteria for self employment and employment are separate and distinct. They further submit that self-employment and employment cannot be combined to meet the eligibility period outlined in s. 5(1).

17I agree with the respondent that the requirements under s. 5(1) of the Schedule are clear. Under s. 5(1)(1), the applicant must be employed for 26 of the 52 weeks before the accident to be eligible for an IRB. The requirements for eligibility under s. 5(1)(2) for an IRB based on self-employment are distinct and separate from eligibility for an IRB based on employment. In my view, the two cannot be combined.

18Accordingly, as per s. 5(1) of the Schedule, I find the applicant does not meet the eligibility criteria for an IRB.

The applicant has suffered a concussion and is removed from the MIG

19The applicant was diagnosed with a concussion and is removed from the MIG.

20Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

21An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

22The applicant submits that they were diagnosed with a concussion following the accident, which is not included in the definition of a “minor injury”.

23The respondent submits that while concussion care was discussed with the applicant, no formal diagnosis was made. I disagree with this position.

24The applicant saw Dr. Sebastian Dewhirst at the Ottawa General Hospital on January 21, 2022, the day after the accident. As seen below from the clinical notes and records, Dr. Dewhirst diagnosed the applicant with a concussion:

25In his clinical note Dr. Dewhirst clearly states:

Visit Diagnoses:

• MVC (motor vehicle collision) (primary)

• Concussion

26I find that Dr. Dewhirst made a formal diagnosis of concussion, and then proceeded to discuss concussion care with the applicant. The applicant followed up with Dr. Rachna Jain, physician, on January 22, 2020 where concussion care was further discussed. This is evidenced in Dr. Jain’s clinical notes and records. Dr. Jain then referred the applicant for concussion rehabilitation on January 28, 2020.

27The respondent relies on a s.44 assessment of Dr. Michael Aiello, physician, conducted on November 11, 2020. In this report, Dr. Aiello notes the following in his report:

“Mr. Zeineddine went to the General Hospital emergency department the following day due to headaches, neck pain, back pain and right knee pain. He believes the doctor diagnosed him with a concussion and soft tissue injuries.”

28When looking at the documents reviewed by Dr. Aiello, it appears that the clinical notes and records of the Ottawa Hospital were reviewed. I place no weight on this report because although the Ottawa Hospital records were reviewed, Dr. Aiello does not reference the concussion diagnosis in those records.

29As Dr. Dewhirst has made a definitive diagnosis of concussion as a result of the accident, I find on a balance of probabilities that the applicant is removed from the MIG because a concussion is outside of the definition of a minor injury under the Schedule.

The disputed treatment plans

30To receive payment for a treatment and assessment plan under s. 15 and 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.

The applicant is entitled to $2,783.49 of occupational therapy services proposed in a plan dated June 23, 2020.

31On June 23, 2020 the applicant submitted a treatment plan for Occupational Therapy Services.

32The goals of the treatment plan in relation to the applicant’s impairment are to provide strategies and assistance with:

i. Pain reduction;

ii. Energy conservation techniques;

iii. Mindfulness, relaxation and mood/stress management;

iv. Community activities; and

v. Sleep hygiene

33In addition, the functional goals identified are listed as:

Occupational therapy treatment to address task simplification, training in pain management, improving independence in occupational performance tasks, pacing and energy conservation.

34The applicant submits that the treatment plan is reasonable and necessary as they were diagnosed with a concussion and require treatment for said concussion.

35The respondent relies on the s. 44 report of Dr. Aiello who did not find that the applicant suffered a concussion. As mentioned above, I give no weight to this report as Dr. Aiello did not address the concussion diagnosed by Dr. Dewhurst.

36The contemporaneous records show that the applicant was diagnosed with a concussion as a result of the accident and therefore I find that the applicant is entitled to $2,783.49 in treatment as outlined in the plan submitted on June 23, 2020.

The applicant is not entitled to $1,247.42 of occupational therapy services proposed in a plan dated January 20, 2021.

37On January 20, 2021 the applicant submitted a treatment plan for Occupational Therapy Services.

38I note that the goals of the treatment plan are identical to the plan submitted on June 23, 2020.

39There has been no evidence adduced or submissions made that show the plan dated June 23, 2020 was incurred. Nor have there been any submissions made to demonstrate that the plan is providing distinct services from those proposed on June 23, 2020.

40As this plan appears to be proposing duplicate services, I find that it is not reasonable and necessary.

The applicant is entitled to a psychological assessment in the amount of $1,995.32 proposed in a treatment plan dated July 29, 2020.

41I find that the applicant is entitled to $1,995.32 for a psychological assessment, proposed by Capital Region Psychological Services, in a treatment plan dated July 29, 2020.

42Dr. David Duong, psychologist, proposed the applicant undergo a psychological assessment based on the results of a screening conducted during the intake process.

43The goals of this treatment plan were to provide a psychological assessment to determine an MVA-related diagnosis and if indicated, recommendations for treatment.

44The applicant submits the clinical notes and records of Dr. Mohamed Khaleel, psychiatrist, as evidence that the applicant requires a psychological assessment.

45The applicant was referred to Dr. Khaleel by Dr. Jain. He saw Dr. Khaleel for the first time on June 17, 2021. Dr. Khaleel, in his clinical note of June 17, 2021, diagnosed the applicant with major depression, Post Traumatic Stress Disorder and Post-Concussion syndrome.

46The applicant further submits that the clinical history with Dr. Jain further supports the proposed assessment. Dr. Jain noted several times in her clinical notes and records that the applicant has presented with psychological symptoms relating to the accident.

47The respondent relies on a psychological assessment conducted by Dr. Amena Syed, neuropsychologist, on November 24, 2020. Dr. Syed, notes that the psychometric testing she completed with the applicant had validity issues, however, she notes that there is some evidence suggesting that the applicant could be suffering from psychological concerns.

48I place the highest weight on the contemporaneous clinical notes and records of Dr. Khaleel and Dr. Jain. They note that the applicant has presented with psychological symptoms as a result of the accident and Dr. Khaleel has gone far enough to make a diagnosis. Therefore, I find that a psychological assessment is both reasonable and necessary.

The applicant is entitled to $1,810.39 for massage therapy services.

49I find the applicant is entitled to $1,810.39 for massage therapy services, proposed by Prime Physio Plus in a treatment plan dated July 23, 2020

50This treatment plan proposed 15 hours of massage therapy with the goals of pain reduction, increased range of motion and an increase in strength.

51The applicant submits that the clinical notes and records of Dr. Jain show that the proposed treatment is reasonable and necessary.

52The respondent submits that the assessment completed by Dr. Aiello does not support the treatment as reasonable or necessary.

53The applicant in his visits with Dr. Jain has been consistently presenting with upper back pain from the date of the accident until the end of the clinical history in November of 2021.

54As the goals of the treatment plan are to reduce pain, I find that this treatment plan is supported by Dr. Jain’s clinical notes and records.

55As mentioned previously, I give no weight to Dr. Aiello’s report as Dr. Aiello did not address the concussion diagnosed by Dr. Dewhurst. I do note that this treatment plan is not related to the concussion. However, as Dr. Aiello did not comprehensively review the documents provided to him, the conclusions in his report cannot be relied upon.

56Therefore, I find that the applicant is entitled to the treatment proposed on July 23, 2020.

The applicant is entitled to $4,741.00 for social rehabilitative counselling.

57The applicant is entitled to $4,741.00 for social rehabilitation counselling services, proposed by Vitality Rehabilitation Group in a treatment plan dated June 23, 2020.

58This treatment plan proposed a comprehensive psychosocial assessment with Ms. Sidra Khan, RSW, followed by 20 hours of counselling. The goals of the treatment plan are addressing psychological and psychosocial concerns, monitoring risks and reduction potential barriers. The functional goals of the treatment plan are system navigation and improving the applicant’s ability to cope with psychological and psychosocial issues.

59The applicant submits the clinical notes and records of Dr. Khaleel, as evidence that the applicant requires a psychosocial assessment.

60The respondent submits that a psychological assessment conducted by Dr. Amena Syed, neuropsychologist, shows the treatment is not warranted.

61Dr. Khaleel in his contemporaneous clinical notes and records addresses psychosocial elements and proposes therapy to address these concerns.

62As I have previously found that the applicant has been diagnosed with psychological impairments relating to the accident by Dr. Khaleel. I find that treatment for these impairments is reasonable and necessary.

63The applicant is entitled to $4,741.00 for social rehabilitative counselling.

The applicant is entitled to $2,658.33 for accounting services for IRB calculation.

64I find that the applicant is entitled to $2,658.33 for accounting and forensics services related to IRB calculations, proposed by ADS Forensics, dated August 16, 2022.

65Section 7(4) of the Schedule states that the insurer shall pay expenses incurred by or on behalf of an insured person for the preparation of a report for the purpose of calculating the person’s income from employment or self-employment if the following three conditions are satisfied:

i. The insured person is applying for an income replacement benefit under this Part that is based on the employment or self-employment considered in the report;

ii. The report is prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004; and

iii. The expense is reasonable and necessary for the purpose of determining the insured person’s entitlement to an income replacement benefit.

66I have found that while not eligible, the applicant was applying for an income replacement benefit based on employment and self-employment considered in the report.

67The respondent’s position is that the applicant was not eligible as per s.5(1) of the Schedule for an IRB and is therefore not entitled to the cost of a report.

68I note that the s.7(4) of the Schedule states that the applicant need only be applying for the benefit, to have the report paid by the insurer. The Schedule does not limit payment of the report to cases where the applicant is entitled to the benefit.

69The report was completed by a member of a designated body within the meaning of the Public Accounting Act, 2004.

70This report was also the first and only accounting report for which the applicant is seeking payment from the respondent.

71The report is reasonable and necessary to determine the applicant’s entitlement to the benefit as he had both employment and self-employment history.

72Therefore, I find on a balance of probabilities that the applicant is entitled to $2,658.33 for the report completed by ADS Forensics.

Interest

73The applicant is entitled to interest in accordance with s. 51 of the Schedule for the following:

(i) $2,783.49 for Occupational Therapy Services as proposed in an OCF-18 dated June 23, 2020;

(ii) $1,995.32 for a psychological assessment proposed in an OCF-18 dated July 29, 2020;

(iii) $1,810.39 for massage therapy proposed in an OCF-18 dated July 23, 2020;

(iv) $4,741.00 for social rehabilitative counselling proposed in an OCF-18 dated June 23, 2020; and

(v) $2,658.33 for accounting services proposed in an OCF-18 dated August 16, 2022.

Award

74The 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.

75It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

76The applicant submits that the respondent’s refusal to remove the applicant from the MIG on the basis of a concussion diagnosis caused the applicant’s benefits to be unreasonably withheld.

77However, I note that the respondent had the relevant clinical notes and records reviewed by a s.44 assessor, who provided a medical opinion in his report that the applicant was subject to the MIG.

78The respondent provided the relevant documentation to a qualified assessor who rendered an opinion. While the Tribunal prefers evidence that contradicts that opinion, the high bar for an award under s.10 of Reg 664 has not been met.

ORDER

79For the reasons above I find that the applicant:

i. Is not eligible for an Income Replacement Benefit;

ii. Has demonstrated injuries which warrant removal from the MIG;

iii. Is entitled to:

1. $2,783.49 for Occupational Therapy Services as proposed in an OCF-18 dated June 23, 2020;

2. $1,995.32 for a psychological assessment proposed in an OCF-18 dated July 29, 2020;

3. $1,810.39 for massage therapy proposed in an OCF-18 dated July 23, 2020;

4. $4,741.00 for social rehabilitative counselling proposed in an OCF-18 dated June 23, 2020; and

5. $2,658.33 for accounting services proposed on August 16, 2022.

iv. Is not entitled to occupational therapy proposed in an OCF-18 dated January 20, 2021;

v. Is entitled to interest as per s.51 of the Schedule; and

vi. Is not entitled to interest or an award under s.10 of Reg 664.