Elbanna v. Zenith Insurance Company

Citation: Elbanna v. Zenith Insurance Company, 2025 CanLII 72396

Licence Appeal Tribunal File Number: 23-005162/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:

Gamal Elbanna

Applicant

and

Zenith Insurance Company

Respondent

DECISION

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Michael Switzer, Counsel

For the Respondent: Stacey Morrow, Counsel

HEARD: By way of written submissions

OVERVIEW

1Gamal Elbanna, the applicant, was involved in an automobile accident on March 30, 2021, 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, Zenith Insurance Company, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from April 27, 2021 to March 30, 2023?

ii. Is the applicant entitled to $798.00 for physiotherapy services, proposed by 360 Concussion Care in a treatment plan/OCF-18 (“plan”) submitted May 13, 2021?

iii. Is the applicant entitled to $4,993.34 for occupational therapy services, proposed by OT Ontario East in a plan submitted June 7, 2021?

iv. Is the applicant entitled to $278.43 for dental services, proposed by Heron Park Dental in a plan submitted June 7, 2021?

v. Is the applicant entitled to $731.00 for dental services, proposed by Dr. Khaldun Wafik in a plan submitted June 17, 2021?

vi. Is the applicant entitled to $2,865.70 ($3,464.70 less $599.00 approved) for physiotherapy services, proposed by Prime Physio Plus in a plan submitted October 20, 2021?

vii. Is the applicant entitled to $45.00 for an ambulance fee, submitted in an OCF-6 on May 20, 2021?

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

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

RESULT

3The applicant is not entitled to a non-earner benefit.

4The applicant is not entitled to the treatment plans in dispute.

5The applicant is not entitled to $45.00 for an ambulance fee.

6The respondent is not liable to pay an award.

7The applicant is not entitled to interest.

ANALYSIS

Is the applicant entitled to a non-earner benefit?

8I find the applicant has not met his burden to demonstrate he is entitled to a non-earner benefit (“NEB”) for the period in dispute.

9Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally focusses on a comparison of the applicant’s pre- and post-accident activities.

10The applicant submits he has suffered a complete inability to carry on a normal life due to his concussion, whiplash associated disorder, contusions thorax, sprain/strain of sacroiliac joint, and sprain/strain of lumbar spine. The applicant relies on the Disability Certificate (OCF-3) prepared by Mr. Mohamed Fouda, physiotherapist of Zenith Insurance Company May 4, 2021.

11The OCF-3 noted the applicant’s complaints are that he cannot concentrate, has dizziness, blurred vision, cannot sit or stand for long periods, and cannot lift. In Part 6 of the form, the section for “Disability Tests and Information”, Mr. Fouda checked the box indicating the applicant suffered a complete inability to carry on a normal life. The recovery period is listed as nine to twelve weeks. The applicant also directed me to the s. 44 independent examination dated September 16, 2021, prepared by Mr. Mohan Iyengar, occupational therapist. The s. 44 report stated the applicant “has full functional abilities to be independent in all his daily activities. He is capable of home maintenance activities with pacing and planning.”.

12The applicant states that he “suffers from a completed inability to carry on a normal life”, however, the applicant has not directed me to compelling evidence to draw a comparison of pre- and post-accident activities, or the applicant’s complete inability to carry on a normal life.

13The respondent relies on the s. 44 physiatry assessment dated June 25, 2021, prepared by Dr. Tonya Ballard, physical medicine and rehabilitation specialist, and the same s. 44 in-home occupational therapy assessment dated September 16, 2021, prepared by Mr. Mohan Iyengar.

14I assign greater weight to Dr. Ballard’s s. 44 report because it noted the applicant is independent in his personal care tasks and has returned to activities of daily living. Dr. Ballard’s report also noted that the applicant was unable to perform housekeeping duties due to his injuries from a prior accident. Those limitations are not related to this accident.

15I find the applicant has not demonstrated on a balance of probabilities that he has suffered a complete inability to carry on with a normal life because the applicant did not direct me to a comparison of his pre- and post- accident activities. Therefore, I find the applicant has not met his burden of proving he is entitled to a non-earner benefit for the period in dispute.

Is the treatment plan for $798.00 of physiotherapy services reasonable and necessary?

16I find on a balance of probabilities the applicant has not demonstrated that the physiotherapy services treatment plan in dispute is reasonable and necessary.

17To receive payment for an OCF-18 under sections 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 the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

18The applicant has not directed me to the actual treatment plan in any of their submissions. The treatment plan was prepared by 360 Concussion Care and submitted to the insurer. The applicant did not submit the OCF-18 in evidence and did not explain what the treatment plan was intended to address, the goals of the treatment plan, the cost of the prescribed treatment sessions, or how progress would be measured.

19The applicant relies on the s. 44 psychology examination, however, the applicant did not provide an explanation of why they are relying on the s. 44 report. The s. 44 psychology examination report was prepared by Dr. Kerry Lawson, clinical psychologist, of Soma Medical Assessments, dated May 10, 2023, and stated the applicant the differential diagnosis of post-traumatic stress disorder. The report states the differential diagnosis is “Post-Traumatic Stress Disorder.” The applicant has not directed me to compelling evidence to support the need for physiotherapy.

20The respondent relies on an earlier s. 44 psychology examination prepared by Dr. Kerry Lawson, dated September 22, 2021. The earlier s. 44 report included a review of the specific OCF-18 for physiotherapy/cognitive rehabilitation and states “this Treatment and Assessment Plan does not reflect a legitimate rehabilitative goal”.

21I assign greater weight to Dr. Lawson’s September 22, 2021, report because it provides a more specific analysis of the physiotherapy treatment plan.

22I find on a balance of probabilities the applicant has not met his burden to establish the treatment plan is reasonable and necessary.

Is the treatment plan for $4,993.34 of occupational therapy reasonable and necessary?

23I find on balance of probabilities the applicant has not demonstrated that the occupational therapy treatment plan in dispute is reasonable and necessary.

24The applicant submits the treatment plan for $4,993.34 is for documentation, initial assessments, training, provider travel time, planning and for items deemed necessary for treatment activity. However, the parties did not direct me to the treatment plan in their submissions. As a result, I cannot determine what the treatment plan is intended to address, the specific injuries sustained from the accident, treatment goals, costs, or how progress would be measured.

25The respondent submits the applicant has the functional abilities to be independent in all his daily activities. The respondent relies on the s. 44 occupational therapist report prepared by Mr. Iyengar, dated September 16, 2021, who found the applicant “has the functional abilities to be independent in all his daily activities.”

26I assign greater weight to the s. 44 report because Mr. Iyengar reviewed the specific treatment plan and noted the treatment plan “does not clearly explain the medical or rehabilitative goal” and the treatment plan “is not reasonable and necessary” as it addresses the same rehabilitation goal as a previous treatment plan dated May 13, 2021.

27I find on a balance of probabilities the applicant has not met his burden to demonstrate the treatment plan is reasonable and necessary.

Are the treatment plans for $278.43 and $731.00 for dental services reasonable and necessary?

28I find on a balance of probabilities the applicant has not demonstrated that the dental plans are reasonable and necessary.

29The parties have not directed me to the treatment plans in their submissions. The applicant states treatment plans for dental work were submitted and denied by the respondent. The applicant has not submitted compelling evidence in support of the treatment plans for dental services.

30The respondent submits while the treatment plan for dental services is reasonable and necessary, it is not a result of the accident. The respondent relies on the s. 44 dental assessment report prepared by Dr. William Butterfield, dentist, dated October 6, 2021. Dr. Butterfield noted “prior to his 2021 motor vehicle accident, he was made aware of his clenching and grinding (bruxism) habit, and was told he required a bruxism appliance to protect his teeth” and the treatment “is not a result of [the applicant’s] motor vehicle accident.”

31I find the applicant has not met his burden to demonstrate the treatment plans are reasonable and necessary.

Is the remaining amount of $2,865.70 for physiotherapy services reasonable and necessary?

32I find on balance of probabilities the applicant has not demonstrated that the unapproved amounts for physiotherapy services are reasonable and necessary.

33The applicant submits the treatment plan for $3,464.70 was partially approved for $599.00 for four physiotherapy sessions, leaving $2,865.70 for physiotherapy services in dispute. The applicant did not submit why the treatment plan is reasonable and necessary, only that the plan is in dispute.

34The parties have not directed me to the treatment plan or the remaining items in the treatment plan in their submissions. The applicant has not provided compelling evidence in support of the remaining items in the treatment plan.

35The respondent submits the treatment plan is partially reasonable as it was approved. The respondent relies on the s. 44 physiatry assessment prepared by Dr. Vidya Sreenivasan, physiatrist, dated April 21, 2022. In the report, Dr. Sreenivasan noted partial approval of the treatment plan for four physiotherapy sessions and the documentation fee. The report noted the applicant “reported no improvement from his accident-related injuries to date and further facility-based treatment will not provide any further recovery.”

36I find the applicant has not met his burden to demonstrate the remaining balance of the treatment plan for physiotherapy is reasonable or necessary.

Is the applicant entitled to $45.00 for ambulance fees?

37I find the applicant is not entitled to $45.00 for ambulance fees.

38The applicant submits the expense was denied by the respondent, however, the applicant did not present any argument on why the expense was reasonable and necessary. The applicant relies on the Explanation of Benefits dated June 11, 2021.

39The respondent submits the ambulance fee was denied in accordance with s. 47(2) of the Schedule and argues the applicant must submit the expense to Ontario Disability Support Program (ODSP). In the Explanation of Benefits dated June 11, 2021, the respondent requested the applicant to submit any unpaid balances and the Explanation of Benefits prepared by ODSP.

40I find the applicant has not met his burden to demonstrate entitlement to the ambulance fee.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing the applicant is not entitled to interest.

Award

42The 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. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

43The applicant submits the respondent was unreasonable in its denial of the benefits. The applicant did not elaborate how the respondent was unreasonable and did not submit a reply submission on this issue.

44I find an award is not appropriate. I agree with the respondent that the denials were based on medical evidence and opinion. Accordingly, this does not constitute unreasonable withholding or delay of payment. As a result, no award is payable.

ORDER

45The applicant is not entitled to non-earner benefits.

46The applicant is not entitled to the treatment plans.

47The applicant is not entitled to the $45.00 for ambulance fees.

48As there are no overdue benefits, the applicant is not entitled to interest.

49The applicant is not entitled to an award under s. 10 of Reg. 664 because no payments were unreasonably withheld or delayed.

50The application is dismissed.