Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 20-012818/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:
Nigel Campbell
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Pasquale Maiolo, Paralegal, Did Not Appear
For the Respondent:
Riley Groskopf, Counsel
HEARD:
By Way of Written Submissions
BACKGROUND
1Nigel Campbell ("the applicant") was involved in an automobile accident on July 4, 2011 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 ("Schedule")1. The applicant was denied certain benefits by Aviva General Insurance ("the respondent") and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").
2Pursuant to the Case Conference Order made by the Tribunal on April 15, 2021, the applicant's submissions and evidence for the written hearing were due by October 18, 2021. The respondent's submissions and evidence were due by November 1, 2021.
3On October 26, 2021, the Tribunal sent the parties a Notice of Written Hearing which advised that if any of the parties did not make submissions, the Tribunal may decide this proceeding without any further notice to them. On November 1, 2021, the Tribunal emailed the applicant's representative and advised that the initial submissions for the applicant were late and the methods in which these could be submitted. The applicant did not respond to the Tribunal's correspondence of October 26, 2021 or November 1, 2021. On November 1, 2021, the respondent submitted its submissions and evidence to the Tribunal and the applicant's representative. To date, the applicant has not provided any written hearing submissions.
ISSUES
4The issues in dispute were identified as follows:
a. Are the applicant's injuries predominately minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline ("MIG")?
b. Is the applicant entitled to $2,111.41 for chiropractic treatment, proposed by Pain Rehabilitation Clinic in a treatment plan ("OCF-18")?
c. Is the applicant entitled to $1,603.57 for chiropractic treatment, proposed by Pain Rehabilitation Clinic in an OCF-18?
d. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant has not met his evidentiary onus to demonstrate that his injuries are not predominately minor. Further, the applicant has failed to prove that the medical benefits in dispute are reasonable and necessary for injuries attributable to the accident. As no benefits are payable, no interest is payable. The applicant's application is dismissed.
ANALYSIS
6I find that the applicant has not met his evidentiary onus as he has failed to file any submissions or evidence for the written hearing to support his claim. The applicant bears the onus to prove that his injuries are not predominately minor and to demonstrate that the disputed OCF-18s are reasonable and necessary.
7The applicant missed his deadline for submissions and evidence and to date, he has not filed any evidence, written submissions, or a reply, and as such he did not present a case. Further, there is no evidence that the applicant has attempted to contact either the Tribunal or the respondent, despite having retained a legal representative.
8The applicant was aware of the deadline for submissions at the Case Conference and still failed to submit any submissions or evidence. Further, despite the Tribunal's correspondence on October 26, 2021 and November 1, 2021, the applicant has not taken any steps to demonstrate that he intends to proceed with the written hearing as previously scheduled.
9It is well-settled that the applicant bears the evidentiary onus to demonstrate that his impairments fall outside of the MIG and that he is entitled to the benefits he seeks on a balance of probabilities. The applicant has not met this burden of proof as he has failed to file any submissions or evidence to support his case. As such, the applicant is not removed from the MIG, nor is he entitled to payment for the benefits in dispute.
ORDER
10The applicant has failed to meet his evidentiary onus and as such, his injuries are predominately minor, and he is not entitled to any of the disputed OCF-18s or interest. The application shall be dismissed.
Released: June 22, 2022
Tanjoyt Deol
Adjudicator