LAT 21-007930/AABS
Licence Appeal Tribunal File Number: 21-007930/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:
Dorota Gumienna
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
No one appeared
For the Respondent:
No one appeared
HEARD: By way of written submissions
OVERVIEW
1Dorota Gumienna, (“the Applicant”) was involved in an automobile accident on January 28, 2019 and sought benefits from TD General Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The Parties participated in a case conference whereby certain issues in dispute were identified and ordered to a hearing in writing. To-date, neither party has made any written submissions for the hearing.
ISSUES
3The issues to be decided in the hearing are:
Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (the “MIG”) and the $3,500.00 funding limit for minor injuries?
Is the Applicant entitled to a medical benefit in the amount of $1,749.00 for chiropractic services, proposed by Philip Naiman Physiotherapy Professional Corporation in a treatment plan/OCF-18 (“plan”) dated July 4, 2019?
Is the Applicant entitled to a medical benefit in the amount of $802.00 for dental services, proposed by Treger Dentistry Professional Corporation in a plan dated July 6, 2019?
Is the Applicant entitled to a medical benefit in the amount of $2,485.96 for a TMJ assessment report, proposed by MediAssess Evaluations Inc. in a plan dated Jun 21, 2019?
Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
4The Applicant made no submissions and produced no evidence to support the Application. Consequently, the Applicant has not met her evidentiary burden to demonstrate entitlement to the benefits claimed.
5The Application is dismissed.
BACKGROUND
6The Applicant, through her counsel, initiated an application with the Tribunal on or around June 25, 2021.
7The Tribunal emailed counsel for the Applicant and the Respondent, notifying them that the matter was scheduled for a case conference. The case conference occurred on January 31, 2022. The Applicant and Respondent were both present with their respective representatives. However, the parties were unable to resolve the issues in dispute at the case conference and a written hearing was scheduled for October 31, 2022, and written submission deadlines were imposed, as outlined in the Case Conference Report and Order dated January 31, 2022.
8A notice of a written hearing was emailed to counsel for the Applicant, the Respondent, and counsel for the Respondent on September 14, 2022. It appears that the notice of written hearing was also mailed to the Applicant on the same date. The notice of a written hearing outlined when written submissions for the hearing were due. To-date, no party has filed written submissions for this hearing.
9The Tribunal emailed counsel for the Applicant and counsel for the Respondent on November 15, 2022, included a copy of the notice of written hearing, and asked if the parties reached a resolution on the issues. Neither party replied to the November 15, 2022 email and the Tribunal has not received any notice that the matter was resolved or withdrawn.
ANALYSIS
10I find that the Applicant has failed to meet her burden to demonstrate that she is entitled to the benefits claimed. The Applicant was given proper notice of the written hearing but chose to not make written submissions or present her evidence as required. Thus, her application is dismissed.
11As outlined in Scarlett v Belair Insurance 2015 ONSC 3635, the evidentiary onus is on the Applicant to demonstrate that she is entitled to the benefits claimed.
12I find that a hearing occurred, as defined in section 2.10 of the Rules because the parties were before the Tribunal and given the opportunity to participate in the written format. The Applicant had an opportunity to make written submissions but chose not to do so. Thus, despite her failure to make written submissions for the hearing, a hearing occurred.
13I am satisfied the Applicant received notice of the hearing. The Tribunal sent a Case Conference Report and Order dated January 31, 2022 to the parties via email on January 31, 2022. The Tribunal sent a Notice of Written Hearing, (“the Notice”), to the Applicant via mail and her counsel via email on September 14, 2022. The Notice advised that a written hearing was scheduled for October 31, 2022. The Notice also advised the parties to disclose and file their evidence in advance of the hearing and that documents filed after the deadlines ordered by the Tribunal may not be considered by the adjudicator hearing the matter.
14Six months have passed since the written hearing date of October 31, 2022. In that time, neither party filed written submissions as per the deadlines imposed by the Tribunal in the Case Conference Report and Order dated January 31, 2022
15The Applicant has failed to meet her onus to demonstrate entitlement to the benefits claimed because she filed no submissions or evidence for the hearing. The Applicant made no attempt to mitigate the issue following the Tribunal’s attempt to contact her. She made no request to extend the deadlines to file submissions or evidence and has never contacted the Tribunal for any other reason.
CONCLUSION
16I find that the Applicant has failed to meet her burden to demonstrate that she is entitled to the benefits claimed in her Application. She was provided an opportunity to file written submissions and evidence but chose not to do so.
17The application is dismissed.
Released: June 15, 2023
__________________________
Brian Norris
Adjudicator