Vidal v. Unifund Assurance Company, 2025 CanLII 135585

Vidal v. Unifund Assurance Company

Citation: Vidal v. Unifund Assurance Company, 2025 ONLAT 25-001263/AABS

Licence Appeal Tribunal File Number: 25-001263/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:

Kasanthia Vidal

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Kasanthia Vidal, Applicant Julia Vilorio Peguero, Counsel Navrose Dhillon, Counsel

For the Respondent: Alexandra Tarbottom, Adjuster Mahroze Khan, Counsel

Heard by Videoconference: November 3 & 4, 2025

OVERVIEW

1Kasanthia Vidal (“the Applicant”) was involved in an automobile accident on August 6, 2022, and sought benefits from Unifund Assurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue to be decided is:

I. Is the Applicant barred from proceeding to a hearing in relation to the occupational therapy (“OT”) treatment and assessment plan (“plan”) proposed by Innovative Occupational Therapy in the amount of $5,589.80, dated January 17, 2023?

ISSUES

3The issues in dispute to be decided are:

i. Is the Applicant entitled to a medical benefit in the amount of $5,589.80 for OT services proposed by Innovated Occupational Therapy in a plan dated January 17, 2023?

ii. Is the Applicant entitled to a medical benefit in the amount of $2,075.00 for an MRI and SPECT scan proposed by MRI Marketing and Business Development Inc. in a plan dated April 26, 2023?

iii. Is the Applicant entitled to a medical benefit in the amount of $4,200.00 for a neuropsychological assessment proposed by Hamilton Health Sciences in a plan dated July 19, 2023?

iv. Is the Applicant entitled to a medical benefit in the amount of $102.82 for prescriptions, submitted on a claim form (OCF-6) dated October 11, 2022?

v. Is the Applicant entitled to a medical benefit in the amount of $46.33 for prescriptions, submitted on an OCF-6 dated November 27, 2023?

vi. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

vii. Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

4The Applicant is permitted to proceed with her application to dispute entitlement to the OT plan, dated January 17, 2023.

5The Applicant is entitled to the plan dated January 17, 2023 pursuant to section 38(11)2 of the Schedule because the Respondent never provided a compliant response to the plan. The Applicant is entitled to the plan regardless of the funding limit. Interest accrues on this plan, pursuant to section 51 of the Schedule.

6The SPECT and MRI plan, dated April 26, 2023, is not reasonable and necessary as a result of the accident.

7The neuropsychological assessment plan dated July 19, 2023, is reasonable and necessary as a result of the accident. Interest accrues on this plan, pursuant to section 51 of the Schedule.

8The Applicant is not entitled to prescription expenses for Euro-Fer in the amount of $23.64.

9The Applicant is entitled to prescription expenses totalling $125.52. Interest accrues on this expense, pursuant to section 51 of the Schedule.

10The Applicant is entitled to an award in the amount of $1,448.86, comprised of 25% of the amounts withheld or delayed in relation to the OT plan, dated January 17, 2023, and the reasonable and necessary prescription expenses, submitted October 11, 2022 and November 27, 2023.

BACKGROUND

11The Applicant has a history of chronic back pain, herniated disc, and cauda equina syndrome which led to surgery in 2018. At the time of the accident, she was the driver of a vehicle which was struck from behind while in traffic on a major highway. Her initial complaints following the accident were of left leg pain and immobility starting from her lower back. These complaints led to her hospitalization for five days, until her symptoms were stable and she was discharged. Her complaints currently include whiplash associated disorder with neurological impairments, concussion, post-traumatic headaches, major depressive disorder, anxiety, as well as other sprains and strains and mental and behavioural impairments.

ANALYSIS

Preliminary Issue

12I find that the Applicant may proceed with her application to dispute entitlement to the OT plan by Innovative Occupational Therapy in the amount of $5,589.80, dated January 17, 2023.

13Pursuant to section 55 of the Schedule, the Applicant is barred from applying to the Tribunal to dispute entitlement to a benefit if she failed to attend a properly scheduled insurer’s examination (“IE”).

14Pursuant to section 44(5)a of the Schedule, proper notice of an IE includes, amongst other things, that the Respondent provide medical reasons for the examination. The Applicant is not obliged to attend an IE in which the notice fails to comply with the requirements outlined in section 44 of the Schedule.

15Pursuant to section 38(8) of the Schedule, the Respondent has an obligation to respond to plans within 10 business days, and that the denial of a benefit must include all medical and all other reasons for the denial.

16The response letter, dated January 30, 2023, is not a clear and unequivocal denial, and it includes no medical reasons for the denial. In fact, there is nothing in the letter that advises the Applicant that the Respondent refuses to pay for the goods and services claimed. The letter confirms receipt of the plan and advises that “after review of all medical documentation and treatment received to date, we require an examination by an independent medical assessor, in order to determine if the treatment being requested would be reasonably required as a direct result of the motor vehicle accident listed above”. This includes no discernible medical reasons; therefore it is not compliant with the Respondent’s obligation outlined in section 38(8) of the Schedule.

17The letter dated February 6, 2023, seeking an IE, does not include any medical reasons. The letter states that the Respondent requires an IE in response to the plan, dated January 17, 2023. This notice is devoid of any medical reasons for the IE.

18The letter dated July 12, 2023, seeking a rescheduled IE, does not include any medical reasons. The letter states that the Applicant failed to attend an examination on March 1, 2023 and that a rescheduled IE is required. Like the January 30 and February 5, 2023 letters, this notice is also devoid of any medical reasons for the denial or the IE.

19Having failed to provide the medical reasons for the denial and for the IE, the Respondent has not satisfied its obligations pursuant to section 44 of the Schedule. Accordingly, the Applicant is not required to attend the IE and is thus not barred from proceeding with her application pursuant to section 55 of the Schedule.

Analysis to be provided despite the potential exhaustion of the funding limit

20Prior to this hearing, the Applicant sought an adjournment on several grounds, the most relevant to this hearing being because the Respondent contends that the $65,000.00 funding limit for non-catastrophic medical, rehabilitation, and attendant care benefits has been exhausted. The Applicant moved that the hearing be adjourned to permit the submission of an application for a determination of catastrophic impairment, which could potentially alleviate the funding issue.

21In a motion order, dated October 30, 2023, the Tribunal denied the Applicant’s request. Amongst the reasons, was that it advised that the hearing adjudicator can make determinations as to whether the issues in dispute are reasonable and necessary as a result of the accident, and whether an award and interest are payable.

22Thus, this hearing proceeded as directed by the Tribunal in the motion order, dated October 30, 2025.

The Applicant is entitled to the OT plan, dated January 17, 2023

23I find that the Applicant is entitled to the OT plan, dated January 17, 2023 because the Respondent has not complied with its response obligations outlined in section 38 of the Schedule.

24In the event an insurer fails to provide any medical reasons for a denial, section 38(11)2 provides that the Respondent shall pay for all goods, services, assessments and examinations described in the plan related to the period starting on the 11th business day and ending on the day a proper notice is provided.

25In Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”), the Divisional Court found that when an insurer fails to provide a compliant section 38 notice and does not cure the deficiency before the Tribunal has adjudicated the dispute, then the insured can proceed to incur the disputed plan and the Respondent is liable to pay for it in accordance with section 38(15) of the Schedule.

26To-date, the Respondent has not provided a compliant denial of the January 17, 2023 plan subsequent to the January 30, 2023 letter. Having found that the January 30, 2023 letter failed to provide any medical reasons for the denial, the application of Suarez is that the Applicant is entitled to the goods and services described in this plan.

27I further find that the Applicant is entitled to the entirety of the plan, regardless of the funding limit for medical, rehabilitation, and attendant care benefits outlined in section 18(3)a of the Schedule. The language in section 38(8) of the Schedule is compulsory, and section 38(11)2 makes no reference to the funding limit. Moreover, section 38(11)2 is a penalty assessed against insurers as a result of their failure to comply with section 38(8). It would be unreasonable to permit an insurer to avoid compliance with the Schedule simply because the funding limit was reached.

The MRI and SPECT scan plan, dated April 26, 2023

28I find that the Applicant has not demonstrated on a balance of probabilities that the MRI and SPECT scans are reasonable and necessary as a result of the accident.

29I agree with the Applicant that an MRI and SPECT scan are comprehensive secondary tools to examine the scope of a brain injury or concussion and parse out whether the Applicant’s impairment are related to a brain injury or psychological impairments. I agree with the reasoning presented by the Applicant in Sukhu v Aviva General Insurance, 2024 CanLII 123324 (ON LAT) (“Sukhu”), which concluded that, in a case with a diagnosis of post-concussive syndrome, it was necessary to differentiate a brain injury from an anxiety disorder or depression.

30However, I find that the Applicant has not demonstrated that she sustained a brain injury or concussion which would warrant a secondary screening to parse out whether the Applicant’s impairments are as a result of a brain injury or psychological impairments. In this case, the Applicant has not received an unequivocal diagnosis of any type of brain injury. At most, Dr. Rathbone diagnosed a possible mild traumatic brain injury, but this evidence post-dates the Applicant’s request for an MRI and SPECT scan. I was not pointed or directed to evidence to support the Applicant’s claim that she sustained a brain injury or concussion, and found none on my own review of the evidence. Thus, I conclude that the Applicant has not met her onus to demonstrate that the plan is reasonable and necessary as a result of the accident.

The neuropsychological assessment plan, dated July 19, 2023

31I find that the Applicant has demonstrated that the neuropsychological assessment plan, dated July 19, 2023 is reasonable and necessary as a result of the accident.

32I find that the referral from OT Kassam, dated June 30, 2023, supportive of a finding that a neuropsychological assessment is reasonable and necessary as a result of the accident. In her testimony, OT Kassam confirmed that she requested a neuropsychological assessment and noted that the results of the assessment could guide her care in accordance with any diagnosis and allow her to prioritize goals according to the assessment findings. Around the same time, on July 6, 2023, the Applicant consulted with Dr. Basta regarding her symptoms of depression and anxiety. Dr. Basta noted a lack of historical complaints of depression and anxiety by the Applicant, but nevertheless advised her to engage in an in-person assessment, as well as engage in counselling. To me, Dr. Basta would not recommend an in-person assessment or engaging in counselling if the Applicant had no symptoms of cognitive or psychological dysfunction.

33I recognize that there is limited evidence of the Applicant experiencing symptoms of cognitive dysfunction in her medical record, and that OT Kassam is primarily the only healthcare provider to document such symptoms. However, I have no reason to discount OT Kassam’s observations. This is because none of her testimony in cross-examination led me to conclude that the cognitive issues reported to OT Kassam were unauthentic or not related to the accident. Further, there is no evidence before me that leads to the conclusion that the Applicant’s cognitive function is greater than what was reported by OT Kassam or included in Dr. Basta’s CNRs.

34To-date, the Respondent’s two reasons to deny funding for the neuropsychological assessment is because the funding limit was nearly reached, and because the fee for an assessment is capped at $2,000.00. As outlined at the beginning of this hearing, the Tribunal has ordered a hearing on whether the plans are reasonable and necessary regardless of the funding limit. Additionally, at no point has the Respondent denied that the plan is reasonable and necessary as a result of the accident. The denial letter, dated August 1, 2023, only uses the funding limit as a means to deny the plan, and closing submissions were the only time the Respondent argued that the assessment ought to be capped at $2,000.00.

35I find that the cost of the assessment is reasonable and necessary and compliant with the Professional Services Guideline (“the PSG”). Indeed, the PSG caps the cost of an assessment at $2,000.00. However, the evidence demonstrates that the neuropsychological assessment is two separate assessments: one part involves a cognitive assessment, which includes testing, scoring and interpreting results, and a written report. The other component is a psychological assessment, which includes a diagnostic interview, psychometric testing and evaluation, and a written report. Further, the $200.00 fee for completing the form is consistent with the PSG, which provides a maximum fee of $200.00 for the completion of an approved treatment plan.

36Accordingly, I find this plan to be reasonable and necessary.

The Applicant is entitled to prescription expenses totalling $125.52

37I find that the Applicant has demonstrated on a balance of probabilities that all the medication expenses claimed are reasonable and necessary as a result of the accident, except for the claim for Euro-Fer, in the amount of $23.64.

38Pursuant to section 38(2)(c)i, the Respondent is liable to pay for drugs prescribed by a regulated healthcare professional that are reasonable and necessary expenses as a result of the Applicant’s accident-related impairments.

39It appears that the Euro-Fer was prescribed by Dr. Basta as a result of an iron deficiency observed on August 11, 2023, which is unrelated to the accident. Thus, the Applicant is not entitled to this expense as it is not as a result of the accident.

40The remaining claims, for Gabapentin, PMS-Diclofenac, Mint-Clonidine, and Aventyl were all prescribed by Dr. Basta as a result of the accident. Dr. Basta prescribed Gabapentin, PMS-Diclofenac shortly after the accident, and the Applicant’s prescription summary shows that it was filled on September 6, 2022. There are no similar prescriptions filled prior to the accident and the brief reference to NSAIDs (non-steroidal anti-inflammatory drugs) is an August 11, 2021 entry by Dr. Basta, which noted that the Applicant was using topical NSAIDs for pain relief. This is different than her post-accident prescription, and using a topical NSAID prior to the accident does not disentitle the Applicant from being reimbursed for accident-related prescription expenses.

41Lastly, Dr. Basta prescribed Mint-Clonidine on September 15, 2023 due to ongoing sleep issues. The Applicant’s sleep issues are related to nightmares and psychological impairments, which I find are as a result of the accident. The Applicant’s sleep issues were identified to Dr. Basta immediately following the accident, and in subsequent visits. This prescription is to address the natural progression of the Applicant’s sleep issues.

42Accordingly, I find that the prescription expenses totalling $125.52 are reasonable and necessary as a result of the accident. Having found the benefit payable, it follows that interest is also payable, pursuant to section 51 of the Schedule.

Interest

43Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule.

44Having determined that the occupational therapy plan, dated January 17, 2023 is payable once incurred and invoiced, regardless of the funding limit, it follows that the Applicant is entitled to interest on any overdue payments related to this benefit.

45Regarding the neuropsychological assessment and medication expenses, it follows that they too would warrant the accumulation of interest, pursuant to section 51 of the Schedule.

Award

46The Applicant sought an award under section 10 of Regulation 664. Under section 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. To be entitled to an award, the Applicant must demonstrate that the Respondent acted in a manner which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

47I find that the Respondent’s refusal to review their January 30, 2023 denial of the OT plan was a stubborn and inflexible action which warrants an award. The Applicant wrote to the Respondent on February 23, 2023, and advised that she would not attend an IE until she received the medical and other reasons for the denial of the plan and for an IE. The Respondent never replied to this letter and, instead, found that the Applicant failed to attend the IE and attempted to reschedule a new IE. In response to that IE request, on July 28, 2023, the Applicant again refused to attend the IE until medical reasons for it and for the denial are provided. To-date, the Respondent has never provided a response or medical reason for the denial and IE.

48I find that an award of $1,397.45, or 25% of the amounts withheld, is warranted. While the Applicant seeks 50% of the amounts withheld, I find that amount is not an accurate reflection of the severity of the Respondent’s actions or inaction. In this situation, the Respondent failed to provide a medical reason for the denial and IE, which alone does not warrant an award. Instead, the award is payable because the Respondent refused to engage in the Applicant’s request for a medical reason when there is clearly none provided at first instance. This is contrary to an insurer’s ongoing obligation to adjust the Applicant’s claim. Best practices dictates that the Respondent ought to have responded to the Applicant’s request for a medical reason instead of ignoring it. However, the Respondent is not held to a standard of perfection and the award is reduced to 25% of the amount withheld because the Respondent partly mitigated the error. The Respondent approved a different plan proposing OT services after the initial denial, and never barred the Applicant from receiving reasonable and necessary OT services in light of what it felt was a failure to attend an IE.

49I find no award payable with respect to the neuropsychological assessment plan because the Respondent never unreasonably withheld or delayed the payment of this benefit. In the response to the neuropsychological assessment plan, the Respondent advised the Applicant that there was insufficient funding for the plan and asked for a response on how to proceed in light of this information. To-date, the Applicant has not provided any response to that correspondence. It cannot be said that the Respondent unreasonably withheld or delayed a benefit in this case because it asked the Applicant for input on how she would like to proceed in light of the limited funding, yet the Applicant never provided any such insight.

50I find no award payable with respect to the MRI/SPECT scan. Having found that the MRI/SPECT scan is not reasonable and necessary as a result of the accident, it follows that the benefit was not unreasonably withheld or delayed.

51I find that the Applicant is entitled to an award in the amount of $51.41 representing 50% of the amounts unreasonably withheld by the Respondent with respect to her prescription expenses. The Respondent denied the initial claim of $102.82 on the basis of a pre-determined assessment of the use of the medications, which is found was unrelated to the Applicant’s claim or condition. It stated that it would not consider the expenses because one medication is typically used for epilepsy and the other used to treat pain and swelling of rheumatoid arthritis and osteoarthritis. This response goes beyond simply being incorrect and, is instead demonstrating action that is contrary to the Respondent’s obligation to continually adjust the Applicant’s claim based on the medical information before it.

52In addition to the arguments discussed above, the Applicant further submits that an award is warranted because the Respondent forced her to a hearing on these issues despite noting that it was likely premature due to the pending catastrophic impairment claim. She also takes issue with the fact that while the Respondent contends that it approved $65,000.00 in medical, rehabilitation, and attendant care benefits, it has yet to pay out that amount. To her, the Respondent has failed to comply with its ongoing obligation to adjust her claim.

53The Respondent submits that the Applicant is not forced to a hearing by operation of the discovery principles outlined in Tomec v. Economical Mutual Insurance Company (“Tomec”). In other words, it suggests that the limitation period starts when the Applicant’s potential entitlement to medical, rehabilitation, and attendant care benefits is confirmed by way of a determination that she sustained a catastrophic impairment as a result of the accident.

54I find no further award payable for proceeding with the hearing. An award must stem from the unreasonable delay or withholding of a benefit. The Respondent’s insistence in proceeding with this hearing in light of the Applicant’s catastrophic impairment claim did not lead to any benefits being withheld or delayed. Accordingly, no award is payable in relation to such actions.

CONCLUSION AND ORDER

55The Applicant is permitted to proceed with her application to dispute entitlement to the OT plan, dated January 17, 2023.

56The Applicant is entitled to the plan dated January 17, 2023 pursuant to section 38(11)2 of the Schedule because the Respondent never provided a valid response to the plan. The Applicant is entitled to the plan regardless of the funding limit. Interest accrues on this plan, pursuant to section 51 of the Schedule.

57The SPECT and MRI plan, dated April 26, 2023, is not reasonable and necessary as a result of the accident.

58The neuropsychological assessment plan dated July 19, 2023 is reasonable and necessary as a result of the accident. Interest accrues on this plan, pursuant to section 51 of the Schedule.

59The Applicant is entitled to medication expenses totalling $125.52. Interest accrues on this expense, pursuant to section 51 of the Schedule.

60The Applicant is not entitled to prescription expenses for Euro-Fer in the amount of $23.64.

61The Applicant is entitled to an award in the amount of $1,448.86, comprised of $1,397.45 in relation to the OT plan, dated January 17, 2023, and $51.41 related to prescription expenses, submitted October 11, 2022 and November 27, 2023.