[RC] v. Unifund Assurance Company, 2025 CanLII 119949

Licence Appeal Tribunal

Citation: [RC] v. Unifund Assurance Company, 2025 ONLAT 24-014880/AABS

Licence Appeal Tribunal File Number: 24-014880/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:

[RC] (By their litigation guardian, [PC])

Applicant

and

Unifund Assurance Company

Respondent

Decision

Adjudicator: Amar Mohammed

Appearances:

For the Applicant: Fayola Benjamin, Counsel Kayla Benjamin, Counsel

For the Respondent: Jane Lo, Counsel

Court Reporter: Cindy Southwell

Heard by Videoconference: September 8-10, 2025

Overview

1[RC], the applicant, was involved in an automobile accident on December 2, 2019, 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, Unifund Assurance 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. Has the applicant sustained a catastrophic impairment as defined by the Schedule, under section 3.1(1)7 ("Criterion 7") or 3.1(1)8 ("Criterion 8")?

ii. Is the applicant entitled to $2,200.00 for a neurological assessment, proposed by Medex Assessment Clinic in a treatment plan dated June 17, 2021?

iii. Is the applicant entitled to $2,200.00 for an audiometric assessment, proposed by Medex Assessment Clinic in a treatment plan dated May 26, 2021?

iv. Is the applicant entitled to $6,555.74 for occupational therapy, proposed by Medex Assessment Clinic in a treatment plan dated December 9, 2020?

v. Is the applicant entitled to $3,525.00 for physiotherapy services, proposed by Medex Assessment Clinic in a treatment plan dated January 21, 2021?

vi. Is the applicant entitled to $3,940.31 for psychological services, proposed by Medex Assessment Clinic in a treatment plan dated November 12, 2020?

vii. Is the applicant entitled to $3,940.31 for psychological services, proposed by Medex Assessment Clinic in a treatment plan dated February 26, 2021?

viii. Is the applicant entitled to $6,200.00 for psychological services, proposed by Medex Assessment Clinic in a treatment plan dated March 19, 2021?

ix. Is the applicant entitled to $7,180.49 for occupational therapy services, proposed by Medex Assessment Clinic in a treatment plan dated December 2, 2020?

x. Is the applicant entitled to $2,621.28 for physiotherapy services, proposed by Medex Assessment Clinic in a treatment plan dated April 29, 2021?

xi. Is the applicant entitled to $4,000.00 ($20,460.00 less $16,400.00 approved) for a catastrophic assessment, proposed by Medex Assessment Clinic in a treatment plan dated April 26, 2022?

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

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

Result

3The applicant has not sustained a catastrophic impairment as defined by the Schedule, under Criterion 7 or Criterion 8.

4The applicant is not entitled to the medical benefits sought on this application.

5The applicant is not entitled to interest.

6The respondent is not liable to pay an award under s. 10 of Reg. 664.

Analysis

Has the applicant sustained a catastrophic impairment as defined by the Schedule, under Criterion 7 or Criterion 8?

7The applicant has not sustained a catastrophic impairment under Criterion 7 or Criterion 8. The parties confirmed that the applicant has already been approved to the maximum non-catastrophic funding limit. While much of the hearing focused on causation, the parties did not address why the respondent is raising a causation argument at this stage after approving up to the non-catastrophic funding limit since the accident in 2019. In any case, the onus is on the applicant to establish he meets the catastrophic impairment definition under Criterion 7 or Criterion 8, and I find on a balance of probabilities, that the applicant has not met his burden to do so on the evidence presented.

8On December 7, 2019, five days after the accident, according to the MVA Initial Assessment Report by Lifemark, it is noted that the applicant stated the side airbag deployed, and he felt plastic hit his left eye. The applicant also complained of neck pain getting worse, numbness on the right side of his neck, a constant low-grade headache and sleep disturbance. According to the applicant's reporting at the time, after the accident, he accompanied the tow truck driver to the vehicle lot and then took public transport home.

9The December 7, 2019 MVA Initial Assessment Report by Lifemark confirms the physiotherapist's objective observation that the applicant was alert and "orientated x 3". The family doctor reported a symptom onset date of August 2020, approximately eight-to-nine-months post-accident, as noted in a Canada Pension Plan Disability Decision Summary. The parties refer me to the applicant's medical record establishing that he has vascular dementia, noted by his family doctor on March 4, 2021. According to testimony, the applicant's daughter was the first to notice symptoms between four and five months after the accident.

10The applicant is not arguing that his vascular dementia was caused by the accident. The applicant's position is that his vascular dementia likely pre-dated the accident, but there were no symptoms until after the accident and that it was discovered post-accident. The applicant argues that the accident materially contributed to making his vascular dementia symptomatic, contrasting his level of functioning pre- and post-accident in support. The applicant also argues that the resulting symptoms would not have worsened as rapidly as they have, but for the accident. However, on review of the evidence before the Tribunal, my decision need not turn on causation because I find the applicant has not met his onus to establish on a balance of probabilities that his impairments meet the definition of a catastrophic impairment under either Criterion 7 or 8.

Criterion 7

11I find that the applicant has not established that his impairments meet the definition of catastrophic impairment under Criterion 7.

12To be deemed catastrophically impaired, the applicant must prove on a balance of probabilities that he meets the test for Criterion 7. To be successful, the applicant must prove that, as a result of the accident, he has suffered from a mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the American Medical Association's Guides to the Evaluation of Permanent Impairment ("Guides"), 6th edition, 2008, that, when the impairment score is combined with physical impairments in accordance with the Guides, 4th edition, 1993, results in 55 percent or more whole person impairment ("WPI") in accordance with the combining requirements set out in the Combined Values Table of the Guides, 4th edition, 1993.

13The applicant's position is that catastrophic impairment assessment reports should not be strictly required to meet the applicant's onus. While this may be the case, it remains the applicant's burden to demonstrate that he meets the 55 per cent or more threshold as described above.

14Altogether, there are two catastrophic impairment assessment reports relied on by the applicant at this hearing. First, Dr. Vincenzo Santo Basile's Neurological Evaluation Report dated September 28, 2022, offering a 20 per cent WPI under Criterion 7 from a physical perspective. The second report is Julian Amchislavsky's Occupational Therapy Catastrophic Impairment Determination Assessment Report dated May 8, 2022. This report is not helpful to a Criterion 7 analysis because its purpose is to assess the applicant based on the four domains of function under Criterion 8.

15The applicant argues that in addition to accepting the 20 per cent WPI offered by Dr. Basile, I should accept an additional 1 per cent WPI for medication offered by Dr. Ato Sekyi-Otu as set out in a s. 44 Independent Orthopaedic Examination Report dated November 20, 2023.

16Further, the applicant argues that I should accept an additional 40 percent WPI due to mental and behavioural impairment, largely because he has psychological diagnoses under the DSM-IV or DSM-V, and his symptoms have been corroborated by his daughter's testimony.

40 per cent mental or behavioural impairment WPI

17While the applicant refers me to the Psychological Assessment Report by Dr. Bahiraei, Psychologist, dated November 10, 2020, I note that this assessment does not address catastrophic impairment. Dr. Bahiraei concluded that the applicant must be classified outside of the Minor Injury Guideline ("MIG") and that he required treatment. He opined that the applicant was suffering from the following mood disorders in accordance with the diagnostic criteria of the International Statistical Classification of Diseases and Related Health Problems 10th Revision ("ICD-10"), as a result of the accident: Adjustment Disorder with both severe anxiety and depression (F.43.2), Nonorganic Disorder of the Sleep-wake Schedule (F.51.2), Persistent Somatoform Pain Disorder (F.45.4).

18These diagnoses are based on the ICD-10 rather than the DSM, contrary to the applicant's submissions. For this reason, and because the assessment's focus is removal from the MIG rather than catastrophic impairment under either Criterion 7 or 8, the report is of limited value in an analysis on either of the CAT criterion.

19Additionally, the applicant's position that I accept a 40 per cent WPI for mental and behavioural impairments under Criterion 7 does not address the rating methodology in Chapter 14, Section 14.6 of the Guides, 6th edition. This rating methodology is a requirement set out in the Schedule. The applicant does not address the requirement or application of the Brief Psychiatric Rating Scale, Global Assessment of Functioning Scale, or the Psychiatric Impairment Rating Scale in putting forth the 40 per cent WPI for consideration. On this basis, I find that the 40 per cent WPI offered by the applicant does not meet the requirements of the Schedule under Criterion 7.

Traumatic brain injury

20I note that traumatic brain injuries are to be excluded when providing a WPI rating for mental and behavioural impairments under Criterion 7. In this context, the parties did not address whether the applicant's suggested 40 per cent WPI rating for mental and behavioural impairment excludes traumatic brain injury. The applicant refers me to the treatment and progress records of Esther Webster, Psychotherapist, under the supervision of Dr. Bahiraei. In a Psychological Progress Report dated March 10, 2021, Esther Webster states: "It is my opinion that [RC] would benefit from sessions with a neuropsychiatrist to help him with the severe behavioral and cognitive changes that have developed as a result of the traumatic brain injuries sustained at the time of the MVA." In any case, my decision on Criterion 7 does not turn on the Schedule's methodology to exclude traumatic brain injury from a mental and behavioural WPI rating.

21For the reasons above, I find, on a balance of probabilities, that the applicant has not met his onus in establishing that his impairments meet the definition of catastrophic impairment under Criterion 7.

Criterion 8

22I find that the applicant has not established that his impairments meet the definition of catastrophic impairment under Criterion 8.

23Criterion 8 relies on the Guides, 4th edition, 1993. To be successful, the applicant must prove on a balance of probabilities that, as a result of the accident, he suffers from a class 4 marked impairment in at least three of the four domains, or at least one class 5 extreme impairment, due to a mental or behavioural disorder. The Guides set out the four functional domains and the levels of impairment as illustrated in the chart below.

Area or Aspect of Functioning	Class 1: No Impairment	Class 2: Mild Impairment	Class 3: Moderate Impairment	Class 4: Marked Impairment	Class 5: Extreme Impairment
Activities of Daily Living	No impairment is noted	Impairment levels are compatible with most useful functioning	Impairment levels are compatible with some, but not all useful functioning	Impairment levels significantly impede useful functioning	Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaptation (Deterioration in a work-like setting)

24The applicant argues, as a result of the accident, he suffers from a class 4 marked impairment in all four domains, due to vascular dementia, which is a mental or behavioural disorder under Criterion 8.

Is vascular dementia a mental or behavioural disorder under Criterion 8?

25In support of the applicant's diagnosis, I am referred to a note from the applicant's family physician, dated March 4, 2021, indicating an "organic brain disorder, probably vascular dementia." In support of vascular dementia being a mental or behavioural disorder under Criterion 8, the applicant relies on [T.C.] v. Gore Mutual Insurance Company, 2025 CanLII 89898 (ON LAT) ("T.C."). In T.C., the Tribunal found that onset or acceleration of a neurocognitive disorder would not have occurred but for the accident and that a neurocognitive disorder is captured under Criterion 8. However, in the case before me, the applicant's vascular dementia being a mental or behavioural disorder to be considered under Criterion 8 is not supported by medical evidence before me or by reference to any binding authority.

26While I am not bound by other decisions of this Tribunal, I note that in T.C., the adjudicator had medical opinions to consider for Criterion 8, including expert medical evidence, forensic evidence, and the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ("DSM-5"). In contrast, the evidentiary record before me relating to Criterion 8 is quite bare. In addition, the facts before me are distinguishable from T.C. in important aspects, as argued by the respondent, including the timing of the applicant's onset of symptoms, the severity of the symptoms, the mechanism of the accident, and the nature of the injuries reported at the time of the accident. For these reasons I am not persuaded by the applicant's reference to the findings made in T.C. that I must accept vascular dementia as a disorder under Criterion 8.

Does the applicant have a marked impairment in at least three domains?

27The applicant argues that he has at least a marked impairment in all four domains and that he is residing in a nursing home since September 2023. The respondent submits that the applicant has not offered sufficient evidence to meet his onus. On this point, the applicant is not relying on any catastrophic impairment assessment reports offering a medical opinion and the minimum ratings required to meet the threshold set by Criterion 8, as outlined in para. 23 above.

28Rather, the applicant relies on Julian Amchislavsky's Occupational Therapy Catastrophic Impairment Determination Assessment Report. This is the sole report offered by the applicant from a Criterion 8 perspective. The applicant submits that Julian Amchislavsky found a marked impairment in all four of the domains of function. In reading the report, I find that Julian Amchislavsky did not provide any ratings for Criterion 8 under the Schedule but rather assessed and reported on the applicant's functioning while also opining on causation. It is well-established that an opinion on causation is outside the scope of an occupational therapist's expertise.

29While the report notes that the applicant's psycho-emotional concerns contribute to decreased functioning, I do not have a medical opinion before me providing any impairment ratings from a Criterion 8 perspective. In light of references to the applicant's physical impairments as the reasons for a decrease in functioning, I do not have any medical opinion on separation of the applicant's psychological pain symptoms from physical causes, as discussed by the Guides. Further, I find that the observations recorded in the report do not meet the definition of a marked impairment such that the impairments significantly impede useful functioning in at least three domains. For example, at the time of assessment on January 21, 2022, it is noted that the applicant is unable to complete his meal preparation tasks because he cannot stand in the kitchen due to pain in his right knee. Relating to the applicant's social functioning, it is noted that the applicant does not leave his home as he did pre-accident because any weight-bearing activity increases his pain and that he socializes over text or phone instead. While the applicant's daughter's testimony helps clarify the applicant's pre- and post-accident situation including his more up-to-date status, it does not make up for the lack of medical opinions from a Criterion 8 perspective.

30The applicant's position is that catastrophic impairment assessments are not required, and he suggests he was unable to obtain the reports through assessments because of his vascular dementia. The applicant argues no negative inference should be drawn because the Schedule does not require catastrophic impairment assessment reports for the applicant to meet his burden. I note that the applicant did not offer medical evidence to establish what seems to be a medical opinion that he is unable to undergo assessments because of his impairments. To the contrary, in Dr. Basile's report addressing Criterion 7, it is suggested that neuropsychiatry and psychiatry assessments are also warranted for his psychological symptoms.

31I also note that while the applicant argues he could not be assessed due to his impairments, Julian Amchislavsky's occupational therapy assessment occurred in January 2022. The applicant then underwent a capacity assessment by Dan Silver, Social Worker, in May 2023. This assessment concluded the applicant is incapable of managing property and personal care, and incapable of instructing counsel. In my view, if the applicant could be assessed as to whether he meets the test under Ontario's Substitute Decisions Act, then there is no good reason offered by the applicant as to why the applicant could not be assessed as to whether he meets the test under Criterions 7 or 8. Further, the applicant made himself available for s. 44 assessments after this time, including a neurological assessment, neuropsychological assessment and a psychological assessment, in October 2023, on the question of catastrophic impairment under Criterions 7 and 8. In any case, I am not drawing a negative inference for the lack of reports, but the applicant must still meet his evidentiary burden under Criterion 8.

32As previously noted under Criterion 7 and which is also relevant under Criterion 8, the applicant's submissions refer me to diagnoses under the DSM by Dr. Bahiraei that were not made under the DSM. The report confirms Dr. Bahiraei considered the applicant's diagnoses under the ICD-10 and that they were in the context of removal from the MIG, rather than relating to catastrophic impairment as defined by the Schedule.

33Dr. West's s. 44 Independent Psychology Examination assessing catastrophic impairment, dated November 20, 2023, is offered by the respondent. This is the only report relied on by either party providing Criterion 8 ratings so I have no compelling evidentiary basis to doubt Dr. West's opinion. Dr. West opined that the applicant does not meet criteria for any DSM-IV or DSM-V mental health diagnosis related to the accident. On this basis, with regards to Criterion 8, Dr. West opined he does not believe there is any accident-related mental health symptomatology, sequelae or impairment of clinical significance. Dr. West concludes there is no impairment under Criterion 8 in any of the four domains.

34For the reasons above, I find, on a balance of probabilities, that the applicant has not met his onus in establishing that his impairments meet the definition of catastrophic impairment under Criterion 8.

Is the applicant entitled to the rest of the medical benefits sought on this application?

35I find that the applicant is not entitled to the remaining medical benefits sought because he has already been approved to the maximum non-catastrophic funding limit. Since the applicant is found not to meet the definition of catastrophic impairment under Criterion 7 or 8 as a result of the accident which would provide access to increased limits, a detailed analysis of the rest of the benefits sought is not required.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue benefits, the applicant is not entitled to interest.

Award

37The 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. Since there are no benefits payable to which an award could attach, the respondent is not liable to pay an award.

Order

38For the reasons above, I make the following orders:

i. The applicant has not sustained a catastrophic impairment as defined by the Schedule, under Criterion 7 or Criterion 8.

ii. The applicant is not entitled to the medical benefits sought on this application.

iii. The applicant is not entitled to interest.

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.