Licence Appeal Tribunal
Tribunal File Number: 18-000409/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
H.A.
Applicants
and
State Farm Insurance
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES
Counsel for the Applicant: No appearances
Counsel for the Respondent: Alysha Bayes
Representative for the Respondent: Trina Riegg
Written Hearing: December 19, 2018
OVERVIEW
1The applicant, H.A., was injured in a motor vehicle accident on October 17, 2015 and sought benefits from the respondent, State Farm Insurance (“State Farm”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”).
2State Farm denied H.A.’s claim for Non-Earner Benefits (“NEBs”) on the basis that she does not suffer from a complete inability to carry on a normal life, as required by the Schedule. State Farm also denied H.A.’s claims for medical and rehabilitation benefits and the costs of examinations on the basis that the treatment plans were not reasonable and necessary and that her injuries fall within the Minor Injury Guideline (“MIG”). H.A. disagreed and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.
3An initial case conference was held but the parties were unable to come to a resolution and decided that they would proceed to a written hearing on the issues in dispute, set to commence on October 29, 2018. The written hearing process, including the exchange and production of outstanding documentation and submissions, was complicated by a lack of communication between H.A. and her counsel of record. By letter dated August 14, 2018, the Tribunal was informed that H.A.’s counsel was getting off the record due to a breakdown in the relationship. As of this writing, H.A. has not secured new counsel.
4In the meantime, State Farm filed several motions with the Tribunal indicating that H.A. had not complied with the production orders outlined in the Case Conference Order. H.A. did not produce any of the documents ordered to be produced by August 7, 2018. Similarly, H.A.’s deadline for filing her written submissions and evidence came and went on September 28, 2018. In the absence of the information requested or initial submissions on the issues in dispute, State Farm advised that it would be unable to file proper responding submissions on its deadline of October 12, 2018.
5On the Tribunal’s Order, a case conference resumption was scheduled for October 11, 2018 to allow H.A. an opportunity to make submissions on how she would like to proceed and, if not, advise the Tribunal and State Farm on whether she was seeking new counsel or intending to abandon or withdraw her application. Additionally, H.A. was put on notice that a failure to attend at the resumption may result in her application being dismissed due to abandonment.
6At the case conference resumption on October 11, 2018, H.A. did not attend. No submissions on her intention to proceed or withdraw were filed. Attempts to contact her by the Tribunal and State Farm were unsuccessful. Further, there was no indication that she had retained new counsel or even that she intended to proceed as a self-represented applicant. As a result, State Farm submitted that the application be dismissed as abandoned. Via Order dated December 4, 2018, the case conference adjudicator did not dismiss the application for the reason that a hearing in this matter was set prior to the resumption and that, on this basis, H.A. had demonstrated an intention to adjudicate the denials.
7Accordingly—and in the absence of submissions and evidence—the matter proceeded to this written hearing.
ISSUES IN DISPUTE
8The following are the issues to be decided as per the Case Conference Order, dated July 13, 2018:
i. Are the applicant’s injuries predominantly minor injuries, as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?
ii. Is the applicant entitled to receive a medical benefit in the amount of $200.00 for chiropractic services, recommended by 101 Physio in a treatment plan submitted January 16, 2016, and denied by the respondent on January 20, 2016?
iii. Is the applicant entitled to receive a medical benefit in the amount of $2,659.43 for physiotherapy services, recommended by 101 Physio in a treatment plan submitted on April 4, 2016, and denied by the respondent on April 14, 2016?
iv. Is the applicant entitled to the costs of examination in the amount of $2,000.00 for a psychological assessment, recommended by 101 Physio in a treatment plan dated and submitted on February 26, 2018, and denied by the respondent on March 9, 2016?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
9The appeal is dismissed, as I find that H.A. has abandoned her application and has not presented a case.
ANALYSIS
10I find, overwhelmingly, that H.A. has abandoned her appeal. The Tribunal provided H.A. with numerous opportunities to proceed, including additional time to secure new counsel, a second opportunity to attend at the case conference resumption, an invitation to discuss the extension of the production and submission deadlines for the written hearing and the opportunity to respond to the various motions filed by State Farm.
11H.A. has not complied with any of the Tribunal’s directions or accommodations.
12Pursuant to Rule 3.4(d) of the Tribunal’s Common Rules of Practice and Procedure, the Tribunal can dismiss an appeal without a full hearing if the appellant is found to have abandoned the proceeding. H.A. was provided with proper notice of the Tribunal’s intention to dismiss if she failed to attend at the case conference resumption. In my view, when H.A. failed to attend or even notify the Tribunal of her intention to proceed, this matter should have been dismissed.
13In any event, H.A. has not complied with any of the production requests and did not make submissions on her entitlement to the benefits in dispute. Accordingly, there is no information or evidence before the Tribunal. As the onus is on H.A. to prove her entitlement and she has not presented a case, the Tribunal cannot find in her favour.
14As a result, I find H.A. is not entitled to any of the benefits in dispute.
CONCLUSION
15For these reasons, H.A.’s appeal is dismissed.
Released: December 27, 2018
___________________________
Jesse A. Boyce
Adjudicator