Licence Appeal Tribunal File Number: 19-011555/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:
Kamalathasan Subramaniam
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Julia Fogarty
APPEARANCES:
For the Applicant:
Kamalathasan Subramaniam, Applicant
For the Respondent:
Andrea Dunbar, Claims Representative
Yann Grand-Clement, Counsel
HEARD: by Videoconference:
March 7, 2023
OVERVIEW
1Kamalathasan Subramaniam, the applicant, was involved in an automobile accident on November 22, 2017, 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, Aviva, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant proceeded pro se as a self-represented party at the hearing on March 7, 2023.
3During the hearing he introduced no relevant documentary evidence and no expert reports. Any testimony provided very little or no insight into why he should be granted the relief being sought in his application.
4The legal tests to be met were thoroughly and repeatedly reiterated throughout the hearing for the benefit of the applicant at each stage in the hearing. Further, the applicant was given time after the hearing commenced to collect any documents he wanted to rely on during the hearing, but he produced no records or documents relevant to the issues.
5At the end of the hearing, when the applicant expressed that he did not believe he was successful in his claim, he sought to adjourn the hearing.
ISSUES
6The 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 limit and in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to an income replacement benefit of $218.75 per week from August 22, 2018 to date and ongoing?
iii. Is the applicant entitled to physiotherapy treatments proposed by Fast Aid Rehabilitation Clinic, as follows:
i. $2,116.80, submitted April 18, 2018?
ii. $2,258.50, submitted April 18, 2018?
iii. $2,258.50, submitted July 18, 2018?
iv. Is the applicant entitled to $2,180.00 for a psychological assessment proposed by Community Health and Counselling Services, submitted June 10, 2019?
v. Is the applicant entitled to $2,194.00 for an orthopaedic assessment proposed by Med Max Assessment Centre, submitted September 11, 2019?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7The applicant did not meet his onus to establish that removal from the MIG is warranted or that he is entitled to any of the benefits in dispute.
8The adjournment request was denied and the application is dismissed.
ANALYSIS
9After completing his closing statement, the applicant asked for an adjournment of the hearing. The request to adjourn the hearing was denied.
10It is well-settled that the Tribunal is entitled to control its own procedure1 and is entitled to deference on matters requiring the exercise of discretion, such as adjournment requests.2
11When considering an adjournment request, the Tribunal considers, amongst other factors: the timeliness of the request and whether the parties have been given the opportunity to canvass their availability; the specific reasons for being unable to proceed on the scheduled date; and the length of the requested adjournment.3
Timing
12The request to adjourn was made after the completion of closing submissions. The hearing had been completed prior to the applicant’s request to adjourn the hearing. The basis for the applicant’s adjournment request was that he did not feel he was successful in proving his case so he would like to try again.
13The timing was prejudicial to the respondent as the respondent had arrived prepared and presented its case. If an adjournment was granted, it would have needed to undertake all the costs of a second hearing. Granting an adjournment following a hearing would be a waste of the Tribunal’s resources and would be contrary to its mandate.
Availability
14The availability for the hearing was canvassed by the Tribunal via email on December 7, 2022, where a list of commencement dates encompassing February 5, 2023 to April 24, 2023 were provided to the parties.
15Five days later, on December 12, 2022, the respondent emailed the Tribunal that the parties mutually agreed to proceed in March 2023.
16Four days later, on December 16, 2022, the Tribunal advised the parties by email that the hearing was scheduled for March 7, 8 and 9, 2023.
17On March 3, 2023, videoconference information was sent to the parties. This was re-sent on March 6, 2023.
18Accordingly, the parties’ availability was fully canvassed prior to scheduling the hearing.
Prior adjournments or delays
19I denied this request on the basis that this matter has been adjourned multiple times since it was filed with the Tribunal on October 22, 2019 for an accident that took place November 22, 2017. As of the date of the hearing this application was 1,233 days old and the accident was over 5 years old.
20Additionally, the applicant waited until the hearing had concluded to make his request. An adjournment is not intended to give a party a “do-over” for a hearing because they attended unprepared and felt they were unsuccessful. The applicant sought, after the hearing had concluded, to retain a lawyer and conduct a fresh hearing on the same issues. This is not a valid ground for an adjournment.
Minor Injury Guideline
21Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
22An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
23During the hearing the applicant testified that he experiences pain, he has marital problems, he is not able to care for his children and he experiences thoughts of suicide. Additionally, that his wife is depressed because of caring for him, his mother comes from Germany twice a year to help and he has lots of debt. The applicant was given additional time at the outset of the hearing to acquire any documents on which he would rely because he did not provide a document brief to the Tribunal. However, after a break, he did not produce any medical records.
24The applicant did not provide evidence sufficient to demonstrate that removal from the MIG is warranted. The applicant provided no corroborating testimony from any healthcare provider and no medical records to support his claim. It was pointed out by the respondent’s representative that the applicant’s wife was not in the country at the time of the accident. Due to her not being in the country at the time of the applicant’s accident and recovery, I place very little weight on her testimony.
25The respondent’s position was that the applicant suffered from a cervical sprain, a lumbar sprain and soft tissue injuries to the shoulder as well as his knee. It submits that all of his impairments are minor injuries which have since resolved. I agree that the injuries described by the respondent are minor injuries within the definition of the MIG. This finding was corroborated by the respondent’s orthopaedic assessor, Dr. Michael Martin, who found that the applicant’s injuries were minor.
26The respondent also sent the applicant for an assessment with Dr. Fabio Salerno, a psychologist, who found the applicant not to have any psychological impairment despite the applicant’s testimony that he experiences suicidal thoughts.
27As such, as it is the applicant’s burden to demonstrate that removal from the MIG is warranted and where he presented insufficient evidence to support his claim, the applicant has not met the test to establish that he should be removed from the MIG on the basis of pain or psychological sequelae.
28To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
29Despite the legal test being explained multiple times the applicant did not introduce any evidence as to the goals of the treatment, how they would be met to a reasonable degree and how the overall cost of achieving them are reasonable. As such, the applicant has not met his burden to establish entitlement to the treatment and assessment plans.
Income Replacement Benefits (IRB)
30The applicant is seeking income replacement benefits in the amount of $218.75 per week from August 22, 2018 to date and ongoing.
31To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
32To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
33The applicant said during his testimony he is unable to work but that he would like to return to work. He testified that he cannot stand for a long time or sit for a long time. He cannot carry more than 10 pounds. He said that he is unable to pick up his children or play with them. He stated that he is deeply in debt and that he is in pain. He stated that he cannot express his feelings.
34This was contradicted by the evidence of the respondent, specifically that of Dr. M. Martin, an orthopaedic surgeon who assessed the applicant and determined that he is able to work. The applicant was also found to not have any psychological impairment by Dr. F. Salerno.
35As such, I find that the applicant has not met his burden to establish entitlement to an IRB since he did not lead any medical evidence corroborating his position that he is unable to work and his position was directly contradicted by an orthopaedic surgeon who found he was able to work and by a psychologist who found that he did not suffer from a psychological impairment.
Interest
36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant has not established entitlement to any benefits and as such is not entitled to any interest on those benefits.
ORDER
37The Tribunal orders the following:
i. The applicant’s request to adjourn the hearing is denied;
ii. The applicant’s injuries remain within the MIG;
iii. The applicant is not entitled to an IRB;
iv. The applicant’s physiotherapy treatment plans proposed by Fast Aid Rehabilitation Clinic are not reasonable and necessary;
v. The applicant’s psychological assessment treatment plan proposed by Community Health and Counselling Services is not reasonable and necessary;
vi. The applicant’s orthopaedic assessment treatment plan proposed by Med Max Assessment Centre is not reasonable and necessary; and
vii. The applicant is not entitled to interest.
38The applicant’s application is dismissed.
Released: June 22, 2023
__________________________
Julia Fogarty
Adjudicator
Footnotes
- Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), s. 25.0.1(a)
- Riddell v. Huynh, 2019 ONSC 2620 (Ont. Div. Ct.), at para. 33.
- See, for e.g., The Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, at para. 37.