Citation: Primmum Insurance Company v. Fuda, 2026 ONLAT 24-009619/AABS

Licence Appeal Tribunal File Number: 24-009619/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:

Primmum Insurance Company

Applicant

and

Monica Fuda

Respondent

DECISION

ADJUDICATOR:

Harouna Saley Sidibé

APPEARANCES:

For the Applicant:

Crystal Law, Counsel

For the Respondent:

Jono Schneider, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Monica Fuda, the insured person in this case, was involved in an automobile accident on January 7, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The insured person was denied benefits by the insurer, Primmum Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. The insurer also brought an application to resolve a dispute regarding the repayment of income replacement benefits (“IRB”).

2In the Case Conference Report and Order dated December 4, 2024 (“CCRO”), the Tribunal ordered that Files 24‑008879/AABS and 24‑009619/AABS be combined under File 24‑009619/AABS, and it identified the issues to be determined at the hearing, including a preliminary issue to be heard together with the substantive issues. A Notice of Written Hearing dated December 10, 2024, scheduled the written hearing for August 15, 2025. On August 6, 2025, the insured person filed a Notice of Motion (“NoM”) seeking an order permitting the Tribunal to accept and consider her written submissions.

ISSUES

3Preliminary Issue: The preliminary issue to be decided is:

1. Is the insurer barred from proceeding to a hearing for the following benefit: Issue #1, because the insurer failed to make the request within the limitation period?

4Substantive issues: The issues to be decided in the hearing are:

1. Is the insurer entitled to a repayment of $10,571.43 relating to its payment of an income replacement benefit (“IRB”) for the period of January 8, 2023, to July 18, 2023?

2. Is the insured person entitled to $38.23 ($57.99 less $19.76 approved) for medications, submitted on a claim form (OCF-6) dated September 22, 2023?

3. Is the insured person entitled to $13.41 for medications, submitted on a claim form (OCF-6) dated July 9, 2024?

4. Is the insured person entitled to $440.00 for concussion treatment, submitted on a claim form (OCF-6) dated June 24, 2024?

5. Is the insured person entitled to $1,435.54 ($3,635.54 less $2,200.00 approved) for physiotherapy services, proposed by Mackenzie Medical Rehabilitation in a treatment plan/OCF-18 (“plan”) dated January 23, 2023?

6. Is the insured person entitled to $3,194.12 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation in a treatment plan dated March 29, 2023?

7. Is the insured person entitled to $1,198.04 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation in a treatment plan dated May 16, 2023?

8. Is the insured person entitled to $1,198.04 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation in a treatment plan dated June 23, 2023?

9. Is the insured person entitled to $1,198.04 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation in a treatment plan dated January 15, 2024?

10. Is the insured person entitled to $2,556.05 for a neurology assessment, proposed by HydroHealth Evaluations in a treatment plan dated July 30, 2024?

11. Is the insurer liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the insured person?

12. Is the insured person entitled to interest on any overdue payment of benefits?

13. Is the insurer entitled to interest on any overdue payment of benefits?

14. Is the insurer entitled to costs?

5The treatment plan for physiotherapy services in the amount of $1,198.04 was misdated as January 23, 2023, in the CCRO. The correct date of the plan is June 23, 2023, and I have reflected this correction in the issues identified above.

6In its submissions, the insurer seeks costs against the insured person in the amount of $1,000.00. Accordingly, I added the cost claim to the issues in dispute.

RESULT

7On the preliminary issue, I find that the insurer is not barred from proceeding with a hearing on the repayment issue.

8On the substantive issues, I find that:

1. The insurer is entitled to repayment of $10,571.43 in IRB for the period January 15, 2023, to July 18, 2023, together with interest pursuant to s. 52(5)– (6), accruing at the prescribed bank rate from the 15th day after the August 29, 2023, repayment notice until the amount is repaid in full.

2. The insured person is entitled to the plan dated July 30, 2024, for $2,556.05 for a neurology assessment, plus interest under s. 51 of the Schedule.

3. The insured person is not entitled to the remaining plans or OCF-6s.

4. The insured person is not entitled to an award.

5. The insurer is not entitled to costs.

PROCEDURAL ISSUES

9The procedural dispute concerns whether the insured person’s written submissions and evidence, served after the applicant’s CCRO deadline, should be admitted and considered in the exercise of the Tribunal’s discretion under the Licence Appeal Tribunal Rules, 2023 (“LAT Rules”).

10The insured person argues that procedural confusion arose from the Tribunal’s order merging two LAT files, one with her as applicant and the other with the insurer. She states she served and filed her Document Brief on the same day as the Case Conference, before the CCRO was issued. She argues that the CCRO identified both parties as “applicants" with set submission deadlines, but the Notice of Written Hearing listed the insurer as the applicant and her as the “respondent”. This led her to believe she should follow the respondent’s deadline in the Notice of Hearing rather than the applicant’s in the CCRO.

11The insured person states that the insurer served its written submissions on July 30, 2025, as the respondent, and that she responded on August 5, 2025, also as the respondent. She notes that the insurer then served a Reply, and she served her own Reply on the same day. She argues these events reflect differing understandings of roles and timelines, indicating procedural confusion rather than intentional non-compliance. Citing Rules 3 and 9.3, she requests that the Tribunal accept her materials, asserting that any non-compliance stemmed from a good-faith interpretation of the Notice of Written Hearing. She suggests any prejudice could be remedied by allowing the insurer to reply again if needed.

12The insured person states there is no prejudice, as the insurer received all materials on time: a DVD in September 2024, her Document Brief on November 27, 2024, and additional evidence on December 23, 2024. She asserts that nothing is new or unavailable. The insurer objects to the Tribunal's consideration of the insured person’s submissions. In response, the insured argues that excluding them would prejudice the Tribunal by depriving it of her perspective. She further emphasizes that her materials are relevant and responsive.

13The insurer opposes the motion and requests that the notice of motion be dismissed, along with the exclusion of the insured person’s late‑filed materials. It submits that there is no ambiguity regarding the parties’ roles or the applicable deadlines. In the CCRO, the Tribunal consolidated the two applications, Ms. Fuda’s benefits application and the insurer’s repayment application, under File 24‑009619/AABS. As a result of that consolidation, the Tribunal designated Ms. Fuda as the applicant and Primmum as the respondent for all purposes, which explains the style of cause used for this motion. The CCRO also set a single timetable applicable to both sets of written submissions: the insured person’s materials were due July 16, 2025, and the insurer’s by August 1, 2025. The insurer met its deadline by filing on July 30, 2025, whereas the insured person did not file until August 5, 2025, almost three weeks late.

14Relying on Rule 9.3, the insurer states that a party failing to comply with disclosure rules cannot rely on non‑compliant material without leave, citing s. 23(1) of the SPPA regarding the prevention of abuse of process. The Tribunal may consider reasons for non‑compliance, prejudice, knowledge of the substance, opposition to admission, and relevance. The insurer opposes admission, noting that no reasonable explanation has been provided for the late filings. If there had been genuine ambiguity, the insured person could have sought clarification under Rule 17, which she did not.

15The insurer argues that late materials would prejudicially invert the burden of proof, which is on the insured person to prove entitlement first. Citing 16-000929 v TD Home and Auto Insurance Company, 2017 CanLII 9813 (ON LAT), the insurer stresses that failing to prove the case makes the insurer’s evidence irrelevant. Allowing late materials improperly lets the insured person respond last without proving her case.

16The insurer argues that the insured person’s filings can't be replies, as replies are limited to new matters raised in responses and can't introduce a new case after the deadline. Citing E.L. v Wawanesa Mutual Insurance Company, 2020 CanLII 42668 (ON LAT), which explains the three‑step process and its limits, the insurer states that even if the insured person were the respondent, she would have missed the 14‑day deadline and exceeded the page limits. Therefore, the insurer contends that the insured person’s materials should not be considered.

17It is undisputed that the insured person served her substantive written submissions and additional evidence on August 5, 2025. Under the CCRO, her materials were due July 16, 2025. They were therefore filed almost three weeks late.

18The insurer subsequently served reply submissions, as permitted under the CCRO’s three‑step schedule. The insured person then filed another document styled as a reply. On review, however, that document goes beyond responding to new matters raised for the first time in the insurer’s reply. In substance, it constitutes a sur‑reply, an additional round of argument that LAT practice generally does not permit absent truly exceptional circumstances.

19The CCRO governs the roles and deadlines in this written hearing. It consolidated the two files and designated Primmum as the applicant and Ms. Fuda as the respondent for all purposes. It also set out a three‑stage timetable: applicant submissions, respondent submissions, and applicant reply. The subsequent Notice of Written Hearing did not alter those roles or timelines. If the insured person perceived uncertainty arising from the wording of the Notice, she could have sought clarification under Rule 17. She did not do so.

20On this record, I accept that the insured person experienced confusion due to the consolidation of two files that had previously assigned different roles to the parties. That confusion does not excuse non‑compliance, but it provides context for the delay. I do not, however, accept that the Notice of Written Hearing created ambiguity about the filing order; its wording does not override the CCRO.

21Rule 9.3 permits the Tribunal to allow reliance on non‑compliant materials after considering: (i) the reason for non‑compliance; (ii) prejudice; (iii) whether the information was already known to the other party; (iv) the other party’s opposition; and (v) relevance.

22In this case, the late evidence and substantive submissions meet that standard. First, while the insured person’s explanation is imperfect, the consolidation created genuine procedural uncertainty. Second, much of the evidence, such as the DVD and earlier document brief, was disclosed months earlier, limiting any prejudice. Third, the materials are relevant to the issues the Tribunal must decide, and excluding the written submissions could impair the insured person’s ability to fully present her case.

23The same cannot be said of the insured person’s additional filing styled as a reply. Because the CCRO entitled her to one reply only, and because the insurer’s reply did not introduce genuinely new matters, a sur‑reply is neither necessary nor fair. Allowing it would expand the record beyond the CCRO’s structure and grant an unnecessary additional round of argument. In these circumstances, the proportionate and fair approach is to permit reliance on the late evidence and consider the late submissions, but to decline the sur‑reply.

24Accordingly, I grant the insured person leave under Rule 9.3 to rely on her late‑filed evidence dated August 5, 2025, and I will consider her written submissions served the same day. However, I do not permit her to file an additional filing styled as a reply. In substance, that document is a sur‑reply, and no sur‑reply is warranted here: the insured person already had the opportunity to file her reply under the three‑step schedule in the CCRO, and the additional filing does not respond to any genuinely new matters raised for the first time in the insurer’s reply. Allowing a sur‑reply would expand the record beyond what procedural fairness requires and would undermine the orderly structure of written hearings.

PRELIMINARY ISSUES ANALYSIS

25I find that the insurer is not barred from proceeding with the repayment issue.

26The party raising a statutory bar bears the onus of identifying the specific provision that, if established, would preclude the Tribunal from hearing the issue. In this case, the insured person relies on s. 36 of the Schedule. Section 36 governs initial entitlement and payment timelines. It does not limit the Tribunal’s jurisdiction to determine a repayment under s. 52. Accordingly, s. 36 cannot operate as a statutory bar.

27The applicable provision is s. 52, which requires the insurer to give notice of repayment within 12 months of the payment unless wilful misrepresentation or fraud is alleged. The insurer relies on its repayment letter dated August 29, 2023, and points to March 7, 2023, as the date of the first IRB payment. On this record, those dates were not disputed. Therefore, the notice falls within the 12-month period and meets the content requirements recognized in prior LAT decisions.

28Even if the insured person disputes the sufficiency or accuracy of the notice, those arguments go to the merits of the insurer's compliance with s. 52, not to the Tribunal’s jurisdiction. Likewise, whether the insurer improperly relied on an alleged failure to disclose employment information is a merits issue for the full s. 52 analysis.

29For these reasons, the insured person has not identified any statutory provision that would bar the insurer from pursuing repayment. The evidence before me supports that notice was given within 12 months, and any remaining disputes must be resolved on the merits.

30Accordingly, I find that the insurer is not barred from proceeding with its repayment claim. The issue will be determined under s. 52 of the Schedule on the merits.

SUBSTANTIVE ISSUES ANALYSIS

Is the insurer entitled to the repayment of $10,571.43 (IRB)

31I find that the insurer is entitled to repayment of $10,571.43 in respect of IRB paid for the period from January 15, 2023, to July 18, 2023.

32The insurer seeks repayment for IRBs paid from January 15, 2023, to July 18, 2023, following the one‑week waiting period. The first payment was issued on March 7, 2023, including a lump sum covering January 15 to February 28, 2023.

33Under s. 52(1) of the Schedule, a person is liable to repay to the insurer any benefit that is paid to the person in error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation. Sections 52(2) and (3) require an insurer to give the insured person notice of the amount that is required to be repaid within 12 months after the payment of the amount that is to be repaid, unless it was originally paid to the insured person as a result of wilful misrepresentation or fraud. The insurer has the burden of proving, on a balance of probabilities, that the IRB was paid as a result of an error, wilful misrepresentation, or fraud.

34The Tribunal has defined “misrepresentation” as “any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts.” The Tribunal has also held that “silence or failure to report” can constitute wilful misrepresentation.

35The insurer submits that it is entitled to repayment of $10,571.43 for IRB paid from January 8, 2023, to July 18, 2023. It relies in part on Unifund Assurance Company vs 17-001773, 2018 CanLII 13168 (ON LAT) for the notice content, on Vieira v Aviva Insurance Company of Canada, 2023 CanLII 67888 (ON LAT), for the 12‑month calculation, and on Chandran for wilful misrepresentation.

36The insured person disputes the claim, arguing that no valid repayment notice was issued and that, in any event, she remained entitled to IRB through June 15, 2023, and had no income before then. She also relies on Marianayagam to argue that the insurer’s amount is not “substantially correct.”

37The repayment issue turns on (i) whether the insurer gave proper and timely notice under s. 52; (ii) whether, on the facts, IRB was not payable (by reason of return to work and/or non‑compliance with s. 33) or was paid as a result of misrepresentation; and (iii) whether the quantum claimed meets the substantial correctness standard.

Proper and timely repayment notice

38On July 10, 2023, the insurer informed the insured that IRB would cease because her family doctor had cleared her for modified duties in May 2023 and for a full return to regular duties effective June 15, 2023. This meant she no longer met the “substantial inability” test for IRB after those clearances. Although the benefit was stopped effective July 4, 2023, a previously issued bi-weekly payment resulted in IRB being paid through July 18, 2023, an extra eight days. The insurer, therefore, indicated a possible overpayment for the period of ineligibility (at a minimum, June 15 to July 18, 2023) and requested post-accident pay stubs under section 33 to determine the amount. It later issued a formal repayment request under section 52.

39On August 14, 2023, the insurer again requested the post‑accident pay stubs under s. 33 and advised that an IRB was not payable until the information was received.

40On August 29, 2023, the insurer sent a repayment notice demanding $10,571.43 in IRBs paid from January 8, 2023, to July 18, 2023, and expressly noted that the amount might change upon receipt of the outstanding income information; the record also shows a further follow‑up on September 25, 2023, reiterating the s. 33 requests.

41Although not binding, I adopt the reasoning in Unifund that a repayment notice need only be substantially correct, not perfect, because the purpose of s. 52 is to give the insured fair notice of the basis and scope of the claim rather than to impose technical pleading standards. Applying that standard, the August 29, 2023, letter adequately identifies the benefit (IRB), the period (January 14–July 18, 2023), and the amount ($10,571.43). I also accept Vieira's approach that the 12‑month clock in s. 52(2)(3) runs from the date of payment. Because the first IRB payment was made on March 7, 2023, the August 29, 2023, notice falls within the statutory period.

42Although prior Tribunal decisions are not binding, I adopt their reasoning here for the statutory‑interpretation principles already outlined.

43I find that the insurer’s August 29, 2023, letter meets the required elements of a repayment notice: it identifies the IRB benefit, the period in question, and the amount claimed.

44I also find the notice timely. The first IRB payment was made on March 7, 2023, and the repayment request was issued on August 29, 2023, well within the 12‑month period.

45The insured person relies on Marianayagam to argue that the insurer’s notice was deficient. She submits that because the notice was, in her view, incomplete, it cannot satisfy s. 52(2) and therefore cannot be treated as having been given “within 12 months” for the purposes of s. 52(3). Marianayagam addresses, among other things, the content and time‑scope of overpayment recovery. The August 29 notice adequately particularizes the benefit, time period, and amount, and it was delivered within 12 months of payment, thereby satisfying both s. 52(2) and (3) and Unifund’s “substantial correctness” standard.

46On the totality of the record, I find that the insurer gave proper s. 52 notice on August 29, 2023, and that it did so within 12 months of payment. The content and timing requirements are met.

Overpayment

47According to the Schedule, a partial or temporary return to work does not automatically disqualify an insured person from receiving IRBs; instead, post‑accident earnings are included in determining the weekly benefit. If post‑accident earnings equal or exceed pre‑accident earnings, the IRB for that period is effectively reduced to zero.

48The insurer states that the insured person was approved for a gradual return to work in May 2023 and for full-time, regular duties starting June 15, 2023. Pay records indicate a resumption of full pre-accident earnings as of June 15, resulting in at least 4.714 weeks of non-payable IRB (June 15 - July 18), amounting to $1,885.71 at $400 per week. It also claims that additional overpayment occurred before June 15 due to non-compliance with s. 33.

49The insured person states that June 15 was only a modified or part-time effort while she remained disabled; she highlights that a partial return does not disqualify IRBs and asserts there was no income before June 15, so no earlier overpayment can occur.

50The record includes a family physician’s note (Dr. Nicole English) dated April 5, 2023, and SE Health forms dated June 6, 2023, indicating a return in May and full duties by June 15, 2023. The insurer relied on these documents in its July 10, 2023, eligibility letter. The pay records in evidence show that by June 15, 2023, the insured had resumed full pre‑accident earnings. The insured maintains that her June 15 return was transitional and that her OCD symptoms worsened, after which she moved to less demanding work.

51I accept that a temporary or modified return does not, in itself, disqualify IRBs, and I have considered the insured person’s evidence that June 15 was the start of a trial return. However, the pay records show that from June 15 onward, the insured person earned full pre-accident wages. In those circumstances, the IRB for June 15 - July 18 is not payable because post-accident earnings fully offset the benefit for that period. I therefore find an overpayment for that interval in the amount claimed, $1,885.71 (i.e., 4.714 weeks × $400/week). The insured person’s evidence that symptoms later worsened or that she subsequently transitioned to less demanding work does not alter the wage-based analysis for this specific period.

52Section 33 requires an insured person to provide, upon request, information reasonably necessary to establish entitlement. It also allows the insurer to suspend payments for any period of non-compliance after proper notice. The insurer relies on written requests dated July 10 and August 14, 2023, for post-accident income information covering January 8 and June 14, 2023, asserting that complete proof (such as pay records/ROE or confirmation of no earnings) was not provided. The insured person states she disclosed her return-to-work details, including pay stubs and an ROE, multiple times and maintains that there was no income prior to June 15.

53On this record, I am satisfied that the insurer’s July 10 and August 14, 2023, letters were reasonable s. 33 requests directed to information necessary to calculate (and, if appropriate, adjust) IRB entitlement for January 8 - June 14, 2023. The letters identified the income documentation sought and put the insured person on notice of the consequences of non‑compliance. While the insured person says she provided some materials, the record does not show a complete and responsive package addressing the entire January - June period (for example, either comprehensive pay documentation or a clear, supported “no earnings” confirmation for each relevant sub‑period). In the absence of complete proof, and given the compliant requests, I find that the insured person failed to comply with s. 33 for the January 8 - June 14 period. Under s. 33, the insurer is therefore not liable to pay IRB for that period, and amounts paid are recoverable.

54Taken together with my findings above for June 15 - July 18, I conclude that the full amount claimed is repayable.

Wilful misrepresentation

55In light of my finding that the August 29, 2023, repayment notice was both proper and timely, it is unnecessary to determine the insurer’s alternative allegation that the 12‑month limit does not apply because of wilful misrepresentation.

Repayment calculation

56The insurer’s calculation is straightforward: excluding the first week of disability, the overpayment period runs from January 14, 2023, to July 18, 2023, for a total of 26.428575 weeks × $400/week = $10,571.43. The parties’ materials confirm the first payment date (March 7, 2023) and the August 29, 2023, demand.

Period	Weeks	Weekly Rate	Amount
Jan 14 – Jun 14, 2023 (s. 33 non-compliance)	21.714	$400	$8,685.72
Jun 15 – Jul 14, 2023 (return to work)	4.714	$400	$1,885.71
Total	26.428	$400	$10,571.43

57This allocation reflects (i) non‑compliance with s. 33 before June 15, rendering IRBs not payable during that period, and (ii) return to work earnings thereafter; together they support the insurer’s substantial correctness under Unifund.

58The insured contends that the $10,571.43 amount is not substantially correct under Marianayagam and pegs the maximum at $971.43. However, she did not point me to a coherent set of figures, periods, or documents that would substantiate the $971.43 calculation.

59With no cogent contrary calculations from the applicant, and in view of (i) the clear overpayment from June 15–July 18, 2023, (ii) the s. 33 non‑compliance for the prior period, and (iii) the valid and timely August 29, 2023, notice, I accept the insurer’s $10,571.43 computation as substantially correct for the purposes of s. 52 and Unifund.

60I also note the insurer’s position that IRBs were initially calculated and paid based on the information it had, while it sought further documentation to properly assess ongoing entitlement, which the applicant did not fully provide. This further supports the conclusion that the amounts paid during the period of non‑compliance were paid in error.

61For the same reasons, the insurer’s alternative reliance on wilful misrepresentation and adverse inference would also support recovery, if required.

62I find that:

(a). The August 29, 2023, letter is a valid s. 52 notice that is timely and substantially correct;

(b). IRBs paid June 15-July 18, 2023, were not payable and are recoverable; and

(c). due to the insured’s s. 33 non‑compliance, IRBs paid January 8-June 14, 2023, were paid in error and are likewise recoverable. The insurer has therefore proven its entitlement to the full amount claimed, $10,571.43.

63Accordingly, on a balance of probabilities, I find that the insurer is entitled to repayment of $10,571.43 under s. 52 of the Schedule, together with interest under s. 52(5) from the 15th day after August 29, 2023, to the date of full repayment.

Is the insured person entitled to the disputed treatment plans?

64I find that the insured person has not established entitlement to any of the disputed physiotherapy treatment plans, or to the concussion treatment OCF‑6 and the medication OCF‑6s. However, I find that she is entitled to the neurology assessment plan dated July 30, 2024.

65To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the insured person 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, she 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.

66I find that the insured has not proven entitlement to any of the disputed physiotherapy plans.

67The applicant submitted multiple treatment plans between January 2023 and January 2024.

68The January 23, 2023, plan totalled $3,635.54, including proposed physiotherapy interventions such as manipulation and exercise blocks, a total‑body assessment, and protective gloves. The stated goals included pain reduction, improving range of motion and strength, supporting ADLs, and facilitating modified work duties.

69The March 29, 2023, plan ($3,194.12) and the May 16, 2023, and June 23, 2023, plans (each $1,198.04) proposed similar goals and modalities, including physiotherapy, massage therapy, and chiropractic care.

70The January 15, 2024, plan ($1,198.04) likewise sought additional facility‑based treatment.

71The applicant argues that these plans align with her ongoing functional limitations and continued symptomatology. She further notes that although the earlier 2023 plans were submitted while she was considered within the MIG, she was subsequently found to fall outside the MIG as of August 14, 2023, on psychological grounds. She submits that the treatment proposed across these plans remains reasonable and necessary in light of her continuing impairments.

72The contemporaneous ER record (January 8, 2023) recommended follow-up physical therapy, and on March 8 and April 24, 2023, Dr. Ashley Qaderi, a family doctor, referred the patient to physiotherapy, chiropractic care, and massage for neck/back complaints.

73The insurer submits that there is no medical documentation from treating providers beyond June 2023 recommending ongoing facility‑based physiotherapy, and that the insured person filed no written submissions addressing the merits of the treatment plan within the CCRO timelines.

74These early primary‑care notes confirm initial referrals but do not address dose, duration, or functional goals beyond mid‑2023.

75The Aberfoyle CNRs were largely handwritten/illegible on the record before me.

76I have considered Dr. Vincenzo Basile’s November 13, 2024, neurology report recommending weekly physiotherapy, massage, and chiropractic care for persistent post‑concussion and soft‑tissue symptoms. While the opinion supports ongoing care in late 2024, it post‑dates the 2023 treatment plans by more than a year and does not tie the specific disputed 2023 physiotherapy blocks to contemporaneous functional goals, expected gains, or measurable outcomes. Given its temporal distance and lack of plan‑specific analysis, I do not find it persuasive on whether the 2023 plans were reasonable and necessary at the time they were proposed.

77The applicant bears the burden to prove that each disputed plan was reasonable and necessary at the time of submission. The respondent does not bear the burden of justifying its earlier MIG‑based denials. On this record, the applicant did not submit contemporaneous treating recommendations after mid‑2023 that specify dose, duration, and functional objectives for the plans in question, nor did she provide an analysis of expected functional improvement or cost‑benefit. The fact that she was later removed from the MIG on August 14, 2023 (for psychological reasons) does not, by itself, prove that the earlier physiotherapy plans exceeded MIG limits or were unreasonable and unnecessary when proposed. In simple terms, removal from the MIG later in 2023 does not constitute retroactive proof that the earlier plans were reasonable and necessary, and the applicant has not satisfied her evidentiary burden regarding those plans.

78The insured person did not provide submissions articulating functional goals, expected gains, dose‑response, or cost‑benefit for the disputed physiotherapy blocks, and there is no cogent treating recommendation post-June 2023 linking these plans to measurable outcomes.

79The insurer’s August 10, 2023, examinations (physiatry/neurology) remain unchallenged on the merits in the record before me. While Dr. Basile’s November 13, 2024, opinion generally supports ongoing care, it post‑dates the 2023 plans and does not cure the insured person’s evidentiary gaps regarding the necessity and reasonable cost of the specific plans in dispute. Therefore, the insured person has not met her burden of proof, and the physiotherapy plans are not payable.

80Accordingly, on a balance of probabilities, I find that the insured person is not entitled to payment under the January 23, 2023, March 29, 2023, May 16, 2023, June 23, 2023, and January 15, 2024, physiotherapy plans.

Neurology Assessment

81I find that the insured person is entitled to the neurology assessment plan for July 30, 2024 ($2,556.05).

82The purpose of an assessment plan is to determine whether further investigation is clinically justified, considering the insured person’s ongoing symptoms. Whether a neurological impairment is ultimately confirmed does not bar access to an assessment where there is a reasonable clinical basis for specialist review.

83The July 30, 2024, plan (Physician: Dr. Vincenzo Basile; Chiropractor: Dr. David Huang) seeks to evaluate potential accident‑related neurological impairment, guide multidisciplinary care, and address the insured person’s ongoing symptoms, including headache, balance issues, and cognitive complaints.

84The insurer denied the plan, relying on the August 10, 2023, neurology insurer examination by Dr. Yahmad, which found no objective evidence of traumatic brain injury and no neurological diagnosis.

85The insured submits that even in the absence of a confirmed diagnosis, persistent post‑concussive‑type symptoms reasonably warrant a specialist assessment to determine the nature and extent of her condition.

86On November 13, 2024, Dr. Basile completed an independent neurology assessment and diagnosed, at a minimum, a suspected mild traumatic brain injury with persistent post‑concussion symptoms. He recommended a care program and additional input from a specialist.

87I place greater weight on the 2024 assessment request and Dr. Basile’s subsequent clinical findings, particularly given the documented persistence of symptoms. The timing of the plan (July 2024), followed by a comprehensive neurological evaluation (November 2024), provides a coherent clinical trajectory that supports further investigation. This analysis explains why my earlier findings regarding IRB entitlement do not preclude approval of this assessment: the two determinations serve different purposes, and the continued presence of symptoms provides a reasonable clinical basis to proceed despite earlier contrary evidence. On the record before me, the neurology assessment plan is reasonable and necessary.

88Accordingly, on a balance of probabilities, I find that the insured person is entitled to the neurology assessment.

Concussion treatment

89I find that the concussion treatment OCF‑6 is not payable.

90The OCF‑6 (July 24, 2024) claims $400.00 for four concussion management treatments.

91The insurer denied payment because no OCF‑18 had been previously approved for these invoices. Under s. 38(2) of the Schedule, an insurer is not liable to pay a medical or rehabilitation expense incurred before the submission or approval of a treatment plan, absent a waiver.

92The insured person did not provide submissions on the concussion treatment, and there is no OCF‑18 in the record tied to the four sessions claimed on the OCF‑6.

93Although Dr. Basile later diagnosed suspected mild traumatic brain injury and recommended ongoing care (November 13, 2024), that opinion does not regularize an OCF‑6 without an antecedent OCF‑18 or an insurer waiver.

94The statutory pre‑approval regime applies. No OCF‑18 preceded these four sessions, and the insurer did not waive s. 38(2). Dr. Basile’s later diagnosis does not retroactively regularize an OCF‑6 absent a plan or waiver. On these facts, there is no approved OCF‑18 for the claimed services, and no waiver by the insurer; the insured person provided no submissions to bring the expense within an exception.

95Accordingly, on a balance of probabilities, I find that the concussion OCF‑6 is not payable.

Medication Plans

96I find that the medication OCF‑6s are not payable.

97OCF‑6 dated July 9, 2024, for $13.41 claims Ratio Mometasone 0.1% and Amlodipine 5 mg.

98OCF‑6 dated September 22, 2023, for $38.23 claims Apo‑Terazosin 1 mg, also a blood‑pressure medication.

99The insurer denied payment and requested medical documentation linking the medication to the accident; none was provided. The insurer also points to the OCF‑3 and file materials reflecting pre‑accident hypertension.

100The insured person made no submissions regarding the medication claims.

101The insured person has not shown that these medications were incurred as a result of the accident. The record associates them with hypertension/dermatologic conditions and contains no treating opinion connecting them to the collision or its sequelae. In the absence of submissions or evidence, the claims are not payable.

102Accordingly, on a balance of probabilities, I find that the OCF‑6s for $13.41 and $38.23 are not payable.

Interest

103Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The approved neurology assessment (July 30, 2024) accrues interest under s. 51 on any overdue amount from the date it became payable under the Schedule until paid.

104Section 52(5) grants an insurer discretion to charge interest on a repayment. I find this appropriate in this case. Using the bank rate defined in s. 52(6), interest begins to accrue on the 15th day after the August 29, 2023, repayment notice until the balance is fully repaid.

Award

105The insured person seeks 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [ See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT) Reconsideration]. The onus is on the insured to prove, on a balance of probabilities, that the insurer’s conduct meets this threshold.

106The insured person provided no submissions to develop the award request, and the record contains no supporting evidence linking the insurer’s conduct to unreasonable delay or withholding of the benefit ultimately found payable.

107The insurer submits that an award is completely unjustified because the insured person failed to file submissions on the award in accordance with the CCRO timetable and to meet other filing/exchange obligations, undermining any suggestion of insurer unreasonableness in handling the claim.

108Further, the insured has not established entitlement to the physiotherapy plans, the concussion OCF‑6, or the medication OCF‑6s, and I have approved only the neurology assessment. An award under s. 10 presupposes unreasonable withholding or delay of a benefit that was, in fact, payable; there is no evidentiary basis to conclude that the respondent unreasonably withheld or delayed payment of the neurology assessment (or any other benefit) on this record.

109An award is an exceptional remedy. On the totality of the evidence, I am not satisfied that the insurer unreasonably withheld or delayed payment in a manner that warrants an award because (i) the insured filed no substantive submissions on the award and identified no evidence of unreasonable delay or withholding; (ii) most disputed benefits were not payable on this record, and the sole item allowed, the neurology assessment, was reasonably contested in light of the earlier IE and evolving clinical picture; and (iii) the procedural history, including the insured person’s missed and incomplete s. 33 productions and late filings undermine any inference that delays were attributable to insurer misconduct rather than ordinary claim administration.

110Accordingly, the request for an award is denied.

Costs

111The insurer seeks $1,000.00 in costs, arguing that the insured failed to meet CCRO timelines, filed no written submissions on the merits, and abandoned the hearing without notice. The insurer believes this conduct warrants a cost award.

112The insured makes no cost request.

113Under Rule 19, the Tribunal may award costs only if a party (or representative) acts unreasonably, frivolously, vexatiously, or in bad faith. Costs are remedial, not automatic for unsuccessful claims or procedural non-compliance. The Tribunal considers the nature of the conduct, its impact (including prejudice or wasted resources), and proportionality when exercising discretion.

114I accept that the insured missed the CCRO deadline, and the insurer noted this. However, I am not convinced the insured person’s non‑compliance meets Rule 19’s threshold of unreasonable or bad‑faith behaviour. The case was decided on the record, and the insurer showed no meaningful prejudice warranting a punitive award.

115Accordingly, the insurer’s request for costs is denied.

ORDER

116For the above reasons, it is ordered that:

117On the preliminary issues, I find that the insurer is not barred from proceeding with a hearing on the repayment issue.

118On the substantive issues, I find that:

i. The insurer is entitled to repayment of $10,571.43 in IRB for the period January 15, 2023, to July 18, 2023, together with interest pursuant to s. 52(5)– (6), accruing at the prescribed bank rate from the 15th day after the August 29, 2023, repayment notice until the amount is repaid in full.

ii. The insured person is entitled to the plan dated July 30, 2024, for $2,556.05 for a neurology assessment, plus interest under s. 51 of the Schedule.

iii. The insured person is not entitled to the remaining plans or OCF-6s.

iv. The insured person is not entitled to an award.

v. The insurer is not entitled to costs.

Released: March 18, 2026

Harouna Saley Sidibé

Adjudicator