Release date: 09/15/2021
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:
[FK]
Applicant
and
Scottish & York
Respondent
DECISION
ADJUDICATOR:
Lindsay Lake
APPEARANCES:
For the Applicant:
No submissions were filed
For the Respondent:
Grant Black, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1The applicant, [FK], was injured in an automobile accident on January 29, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)1 from Scottish & York, the respondent.
2The respondent denied the applicant’s claims for chiropractic treatment because it had determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG).2 As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).
3A case conference was held on February 4, 2021 and the matter was scheduled for a written hearing.
ISSUES IN DISPUTE
4The following issues are to be decided:
(i) Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?
(ii) Is the applicant entitled to chiropractic services recommended by Continuum Health Services as follows:
(a) $2,840.00 for in a treatment plan (OCF-18) dated February 21,2017?
(b) $2,670.00 in an OCF-18 dated April 25, 2017?
(iii) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant has not satisfied his burden of proving that his accident-related impairments require treatment beyond the MIG. I also find that the applicant is not entitled to the claimed chiropractic treatment. No interest is payable and the respondent’s request for costs is denied.
ANALYSIS
No Submissions or Evidence Filed by the applicant
6At the February 4, 2021 case conference, the parties agreed that the applicant would file his written hearing submissions and evidence with the Tribunal by April 26, 2021 and any reply submissions by May 17, 2021.
7Neither the Tribunal nor the respondent received any submissions from the applicant prior these deadlines.3
8On April 28, 2021, the Tribunal emailed the applicant’s representative to inquire about the status of the applicant’s written hearing submissions.
9On April 30, 2021, the Tribunal received an email from the applicant’s representative’s firm indicating that it was investigating the matter. To date, the Tribunal has not received any further response from the applicant.
10The applicant bears the onus of proving that his injuries are not minor and that he is entitled to the claimed chiropractic treatment by proving that the proposed treatment plans are reasonable and necessary on a balance of probabilities.4
11The applicant has filed no evidence or submissions for this written hearing. In response, the respondent sought a full dismissal of the application and requested its costs in the amount of $1,000.00.
12I find that the applicant has failed to prove on a balance of probabilities that his injuries require treatment beyond the MIG. I also find that the applicant is not entitled to the claimed chiropractic treatment as he has also failed to prove the reasonableness and necessity of the two disputed treatment plans on a balance of probabilities.
Interest
13As there are no benefits owing, no interest is payable.
Costs
14In its submissions, the respondent requested its costs in the amount of $1,000.00 as against the applicant, given the applicant’s patterns of ignoring Tribunal Orders. The respondent also submitted that costs were justified in this matter because it was required to prepare for the first case conference, which the applicant did not attend, and prepare submissions for this written hearing which the applicant also failed to participate in.
15Rule 19.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended, (Rules) allows a party to make a written request for costs at a hearing or at any time before a decision is released. Therefore, the respondent’s requests for costs is properly before me.
16However, I am not granting the respondent’s requests for costs in this matter. While the respondent was required to attend at a case conference where the applicant was not present and also prepare submissions for this hearing which the applicant did not participate in, these steps in and of themselves do not amount to the applicant acting unreasonably, frivolously, vexatiously or in bad faith. Moreover, no details were provided regarding the amount of time that the respondent spent preparing for the case conference and for the written hearing, but the respondent’s written hearing submissions were just over four pages in length and primarily set out the history of events in this matter. I find that preparing relatively short submissions for this written hearing and an unknown amount of time preparing for the first case conference does not warrant $1,000.00 in costs. For all these reasons, the respondent’s request for costs is denied.
CONCLUSION
17For the reasons outlined above, I find that:
(i) The applicant has failed to prove on a balance of probabilities that his injuries are outside of the MIG;
(ii) The applicant is not entitled to two OCF-18s for chiropractic treatment;
(iii) No interest is payable;
(iv) The respondent’s request for costs is denied; and
(v) This application is dismissed.
Released: September 15, 2021
Lindsay Lake, Adjudicator
Footnotes
- O. Reg. 34/10.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Written Submissions of the Respondent, paras. 13 and 17.
- Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.