Licence Appeal Tribunal File Number: 21-010727/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:
Cindy Shervington
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: No one appearing
For the Respondent: Jennifer Sweitzer, Counsel
HEARD: By way of written submissions
OVERVIEW
1Cindy Shervington, the applicant, was involved in an automobile accident on October 1, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Unifund Assurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2A case conference was held on October 19, 2022, where the matter was set down for a written hearing. By way of a Notice of Written Hearing, a written hearing date was scheduled for August 18, 2023. The applicant’s submissions and evidence for the hearing were due thirty calendar days prior to the written hearing date. The applicant did not file any submissions or evidence.
ISSUES
3The issues in dispute are:
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 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $2,546.80 for chiropractic services, proposed by KN Rehabilitation Clinic in a treatment plan (“OCF-18”) dated August 24, 2019?
iii. Is the applicant entitled to $500.00 ($2,115.00 less $1,615.00 approved) for physiotherapy services, proposed by KN Rehabilitation Clinic in an OCF-18 dated May 7, 2019?
iv. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The application is dismissed. The applicant has not met her evidentiary burden to establish that her accident-related impairments warrant removal from the MIG, or that the treatment plans are reasonable and necessary pursuant to ss. 15 and 16 of the Schedule. Given there are no benefits payable, interest is not applicable. The applicant is not entitled to an award.
ANALYSIS
No submissions were filed by the applicant
5The onus is on the applicant to demonstrate that she is entitled to the benefits claimed. She made no submissions and tendered no evidence in support of her claims before the Tribunal. Therefore, I find that the applicant has failed to meet her onus and dismiss the application.
6Pursuant to the Case Conference Report and Order dated November 28, 2022 (“CCRO”), the applicant was required to provide initial written submissions thirty calendar days prior to the written hearing date, and reply submissions seven calendar days prior to the hearing date. The applicant failed to comply with the CCRO and failed to provide any submissions by the deadlines imposed by the Tribunal.
7On August 10, 2023, the respondent’s counsel wrote to counsel for the applicant to advise that they had not yet received the applicant’s written hearing submissions. On August 11, 2023 the Tribunal similarly advised the applicant’s counsel that the Tribunal was not in receipt of the applicant’s submissions. The Tribunal advised that if the applicant still wished to proceed with the matter, she should file a Notice of Motion to request an extension of the deadline for filing submissions. To date, the Tribunal has not received a response to its email, and the applicant has not requested an extension of the deadline.
8There is no evidence that the contact information for the applicant or her counsel has changed; if there were any change, Rule 4.4 required notice of the updated contact information be provided to the Tribunal and the respondent.
9The applicant has been afforded multiple opportunities to provide submissions, or any procedural update regarding these submissions, and has failed to do so.
10Given the applicant’s failure to provide any hearing submissions or evidence, it is clear the applicant has not met her evidentiary burden with regard to the issues in dispute. This application shall be dismissed.
ORDER
11The applicant has not met her evidentiary burden to establish that her accident-related impairments warrant removal from the MIG, or that the treatment plans are reasonable and necessary pursuant to ss. 15 and 16 of the Schedule. As a result, she is not entitled to the treatment plans at issue, applicable interest, or an award.
12The application is dismissed.
Released: December 11, 2023
Ulana Pahuta
Adjudicator