Walker v. The Co-operators General Insurance Company, 2020 CanLII 98728

Citation: Walker vs. The Co-operators General Insurance Company, 2020 ONLAT 19-007576/AABS

Date: December 1, 2020

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:

Kedon Walker

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: No submissions were filed

For the Respondent: Russell Tilden, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant, Kedon Walker (“Walker”), was injured in an automobile accident on December 17, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from The Co-operators General Insurance Company (“The Co-operators”), the respondent.

2The Co-operators denied Walker’s claims for physiotherapy, costs for obtaining certain clinical notes and records (“CNRs”) and costs for completion of a Disability Certificate (“OCF-3”). As a result, Walker submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on November 18, 2019 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is Walker entitled to $4,487.88 for physiotherapy recommended by Health Bound Health Network in a treatment plan (“OCF-18”) submitted on March 13, 2019, and denied on April 1, 2019?

(ii) Is Walker entitled to $120.00 for the cost to obtain Dr. Michael Shupak’s CNRs which was submitted to The Co-operators on November 8, 2017?

(iii) Is Walker entitled to $290.00 for the completion of an OCF-3 by Dr. Shupak which was submitted to The Co-operators on December 5, 2017?

(iv) Is The Co-operators liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to Walker?

(v) Is Walker entitled to interest on any overdue payment of benefits?

RESULT

5I find that Walker has failed to prove on a balance of probabilities that he is entitled to the claimed physiotherapy, the cost to obtain Dr. Shupak’s CNRs or to the cost for Dr. Shupak’s completion of an OCF-3. As no benefits or costs are owing, Walker is not entitled to an award and no interest is payable.

ANALYSIS

No Submissions or Evidence Filed by Walker

6At the November 18, 2019 case conference, the parties agreed that Walker would file his written hearing submissions and evidence with the Tribunal on April 27, 2020 and any reply submissions on May 25, 2020.

7Neither the Tribunal nor The Co-operators received any submissions from Walker prior these deadlines.²

8On November 18, 2020, the Tribunal emailed Walker’s representative to inquire about the status of Walker’s written hearing submissions. To date the Tribunal has not received a response to this email.

9Walker bears the onus of proving his entitlement to the claimed physiotherapy, the cost to obtain Dr. Shupak’s CNRs and the cost for Dr. Shupak’s completion of an OCF-3 by proving they are each reasonable and necessary on a balance of probabilities.³

10Walker has filed no evidence or submissions for this written hearing. The only evidence before me, which was submitted by The Co-operators, are accident benefit forms and correspondence to Walker. None of these documents contain any diagnoses or recommendations for treatment.

11As there is no evidence before me to allow for an analysis to be undertaken of the reasonableness and necessity of the proposed physiotherapy and the claimed costs, I find that Walker has failed to meet his onus and, therefore, is not entitled to the OCF-18 for physiotherapy or to the costs to obtain Dr. Shupak’s CNRs or for Dr. Shupak’s completion of an OCF-3.

Award

12Section 10 of O. Reg. 664 provides that if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

13As I have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

14As there are no benefits owing, no interest is payable.

CONCLUSION

15For the reasons outlined above, I find that Walker:

(i) Is not entitled to the OCF-18 for physiotherapy;

(ii) Is not entitled to the costs of obtaining Dr. Shupak’s CNRs or for Dr. Shupak’s completion of an OCF-3;

(iii) Is not entitled to an award under O. Reg. 664;

(iv) No interest is payable; and

(v) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Written Submissions of Co-operators General Insurance Company, para. 1 and correspondence from The Co-operators dated May 8, 2020.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.