Citation: Bonthu v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-015797/AABS

Licence Appeal Tribunal File Number: 21-015797/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:

Venkatesh Bonthu

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

No Submissions Filed

For the Respondent:

No Submissions Filed

HEARD:

By way of written submissions

OVERVIEW

1Venkatesh Bonthu (the “applicant”) was involved in an automobile accident on January 13, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Wawanesa Mutual Insurance Company (the “respondent”) denied a claim for certain benefits. The applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. 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?

2. Is the applicant entitled to non-earner benefits (“NEB”) in the amount of $185.00 per week from January 13, 2018 to January 12, 2020?

3. Is the applicant entitled to the treatment plans proposed by Midland Wellness Centre as follows:

(i) $2,164.00 for an Attendant Care/Form1 assessment in a plan submitted August 13, 2021 and denied August 19, 2021?

(ii) $3,122.48 for physiotherapy services in a plan submitted May 27, 2021 and denied June 4, 2021?

(iii) $2,797.76 for physiotherapy services in a plan submitted August 13, 2021 and denied August 19, 2021?

(iv) $1,300.00 physiotherapy services in a plan submitted April 19, 2021 and denied May 28, 2021?

(v) $1,995.33 for the cost of a psychological assessment in a plan submitted February 2, 2022 and denied February 16, 2022?

RESULT

3The application is dismissed. As the applicant has made no submissions for this hearing, I find that he has not met his evidentiary burden with regard to the MIG determination nor the benefits in dispute.

ANALYSIS

Proceeding in the Absence of the Parties

4I find that the Tribunal has met its notice obligations and that I may proceed with this written hearing.

5Proceeding with a written hearing where a party or parties fails to participate, under s. 7(2) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 (“SPPA”), requires the Tribunal to be satisfied that the absent party or parties received notice of the written hearing that complies with ss. 6(1) and 6(4) of the SPPA.

6Both parties participated in a case conference that was held on October 27, 2022. This resulted in a Case Conference Report and Order (“CCRO”) released January 5, 2023 that set this matter down for a written hearing and established dates for productions based on the date of the case conference, and for submissions and evidence anchored on the forthcoming date for the hearing to be scheduled by the Tribunal.

7On January 13, 2023, the Tribunal emailed a Notice of Written Hearing (“NoWH”) to both parties that set the hearing date for August 11, 2023. As a result, the applicant’s submissions were due 30 days prior, on July 12, 2023, with the respondent’s submissions due 14 days prior, on July 28, 2023. This notice included the provisions that the hearing adjudicator may not consider documents filed after deadlines ordered by the Tribunal, and that the Tribunal may make a decision without the participation of a party in the absence of submissions.

8Both parties were in contact with the Tribunal following the NoWH.

9The applicant filed a Notice of Motion (“NoM”) on July 24, 2023 requesting an amendment to the CCRO that would allow for later submission deadlines. After a request by the Tribunal on the same day to re-submit this NoM, the applicant filed an adjournment request on August 3, 2023 seeking the same extension of deadlines for written hearing submissions. This was denied by Motion Order of the Tribunal dated August 8, 2023.

10The respondent sent correspondence to the Tribunal on October 4, 2023 noting that no submissions had been received from the applicant and requesting notice when this application would be dismissed as abandoned.

11There is no indication in Tribunal records that the applicant has been in contact with the Tribunal at any time since the adjournment request was filed on August 3, 2023. There is also no indication that the applicant’s contact information changed or was otherwise incorrect in Tribunal records. If the applicant’s address differed from what was provided to the Tribunal, he had an obligation under Rule 4.4 of this Tribunal’s Common Rules of Practice and Procedure (the “Common Rules”) to notify the Tribunal with the correct address.

12As a result, I find that both parties received reasonable notice for this hearing as required by ss. 6(1) and 6(4) of the SPPA. I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA. Therefore, I may proceed with this written hearing pursuant to s. 7(2) of the SPPA.

The Applicant Has Not Met His Burden

13I find that the applicant had the opportunity to make submissions for this hearing and chose not to do so. He has failed to meet his burden demonstrating that his injuries fall outside of the MIG and demonstrating entitlement to the benefits in dispute.

14Pursuant to Scarlett v. Belair Insurance 2015 ONSC 3635, the evidentiary onus is on the applicant to demonstrate entitlement to benefits.

15The applicant failed to meet this onus as he did not file written submissions or evidence with the Tribunal in accordance with the CCRO dated January 5, 2023 and the hearing date set for August 11, 2023. While the applicant made a request to extend the deadlines to file submissions and evidence, this was denied by Tribunal Motion Order on August 8, 2023. In the four months since this denial, he has provided no submissions or been in contact with the Tribunal.

16While the respondent has also not provided submissions for this hearing, I refer to Scarlett and reiterate that it is the applicant’s onus to demonstrate entitlement.

17Given the applicant’s failure to provide submissions or evidence, it is clear that he has not met this evidentiary burden. This application shall be dismissed.

ORDER

18As the applicant has failed to provide any submissions, it follows that he has not met his evidentiary burden to demonstrate that he should be removed from the MIG or to establish entitlement to the benefits in dispute.

19The application is dismissed.