Licence Appeal Tribunal File Number: 19-012552/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Minh Hieu Do
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
No appearance
For the Respondent:
Jean-Claude Rioux, Counsel
HEARD: In Writing
August 4, 2023
OVERVIEW
1Hieu Minh Do, the applicant, was involved in an automobile accident on August 31, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule1 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Canada Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PROCEDURAL MATTER
2This case has a procedural history. The application for this appeal is dated and signed on November 5, 2019. The first case conference, scheduled for April 16, 2020, was adjourned on a motion put forward by the applicant because of a scheduling conflict. The second case conference, scheduled for June 29, 2020, was adjourned on the respondent’s motion because the applicant needed more time to obtain evidence of catastrophic impairment. The third case conference was scheduled on December 1, 2020, as proposed by both parties. However, this was adjourned on the applicant’s motion because pandemic protocols precluded counsel from having access to in-office file materials. The fourth case conference did not proceed as scheduled on January 28, 2021, because applicant’s counsel had a scheduling conflict. The fifth case conference was rescheduled to February 25, 2021, as proposed by the parties, and did not proceed for reasons that are unclear, but which do not appear to be the fault of either party.
3A case conference was finally convened on October 21, 2022, during which the Tribunal ordered the appeal to proceed by way of written hearing. The resulting report and order—which was emailed to counsel for both parties on December 7, 2022—confirmed the applicant’s evidence and initial written submission were due to be served on the respondent and filed with the Tribunal no later than 30 calendar days prior to the hearing. The applicant’s reply submission was invited no later than seven days prior to the hearing.
4The subsequent notice of written hearing—sent via email to counsel for both parties on December 29, 2022, with a reminder to ensure their clients were informed—confirmed the hearing date as August 4, 2023.
5I am satisfied these documents were, in fact, received by both counsel. I note the email addresses used to send both these documents are consistent with the contact information provided to the Tribunal, and consistent with the email address used by the respondent to serve its submission and evidence on the applicant per the Certificate of Service dated July 17, 2023. Several courtesy phone calls—made by the Tribunal to the office of applicant’s counsel on August 9, 2023—to confirm counsel’s email address went unanswered.
6The applicant’s evidence and initial written submissions were due no later than July 6, 2023, and the applicant’s reply submission by July 29, 2023, according to Rule 5.1 of the Tribunal’s Common Rules of Practice and Procedure (October 2017), which note where an action is to be done within a specified number of days, the days are counted by excluding the first day and including the last day.
7The respondent’s submission indicates that, as of July 17, 2023, the applicant had “submitted nothing.” I note that as of August 4, 2023—the date scheduled for this matter to be heard in writing—the applicant has failed to produce any evidence or written submissions to argue the appeal.
8Both parties were duly informed of the submission and hearing dates nearly eight months ago, and given the delays in having this matter heard since April 2020—and given that no request to adjourn the hearing date or any other procedural update has been offered by the applicant—I find it appropriate to proceed with the written hearing.
ISSUES
9The issue(s) in dispute are:
i. Is the applicant entitled to an MRI of the lumbar spine in the amount of $1,800.00, proposed by Pain Rehabilitation Clinic Inc. in a treatment plan dated December 8, 2017?
ii. Is the applicant entitled to an MRI of the head in the amount of $1,800.00, proposed by Pain Rehabilitation Clinic Inc. in a treatment plan dated December 11, 2017?
iii. Is the applicant entitled to chiropractic and massage services in the amount of $2,425.00, proposed by Lifemed Clinic in a treatment plan dated December 1, 2017?
iv. Is the applicant entitled to an OCF-3 disability certificate expense in the amount of $200.00, dated April 16, 2018?
v. Is the applicant entitled to a social work assessment in the amount of $2,200.00, proposed by Pain Rehabilitation Clinic Inc. in a treatment plan dated August 1, 2018?
vi. Is the applicant entitled to the assessments proposed by York Medical Centre, as follows:
i. An in-home assessment in the amount of $2,350.00, in a treatment plan dated November 6, 2017; and
ii. An OCF-3 disability certificate expense in the amount of $200.00, dated November 8, 2017?
vii. Is the applicant entitled to a medication expense in the amount of $590.00, submitted on a claim form dated October 17, 2019?
viii. Is the applicant entitled to physiotherapy services in the amount of $2,600.00, proposed by Pain Rehabilitation Clinic Inc. in a treatment plan dated October 29, 2018?
ix. Is the respondent liable to pay an award under Section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
10The application is dismissed. The applicant has not met her evidentiary burden to establish she is entitled to the medical benefits in dispute. Given there are no benefits payable, interest is not applicable.
11The respondent is not liable to pay an award.
ANALYSIS
Medical benefits and expenses
12This appeal involves a dispute about entitlement to medical benefits and expenses. I have no evidence before me to indicate the parties dispute the applicant’s involvement in an accident as defined by the Schedule. As such, this appeal is focused on whether the applicant sustained impairments resulting from the accident, and whether the claimed benefits and expenses are reasonable and necessary.
13Section 14 of the Schedule compels an insurer to pay medical benefits and expenses to—or on behalf of—an insured person who sustains an impairment resulting from an accident. Section 15(1) of the Schedule further explains these medical benefits shall pay for all reasonable and necessary expenses resulting from the accident.
14It is well established the applicant bears the onus of proving impairment from the accident, as well as demonstrating the reasonableness and necessity of the treatment proposed to address those impairments.
15The applicant did not make any submissions or produce any evidence to meet this onus. Proof of impairment requires medical evidence, and the applicant has submitted none. Relevant factors to consider whether a treatment plan is reasonable or necessary include treatment goals and costs, a relationship between the treatment and the impairments, the expected degree of treatment success, progress monitoring, etc. The applicant produced no evidence for me to assess the reasonableness or necessity of the disputed treatment plans against these factors or otherwise.
16Considering the applicant did not provide a written submission or any medical evidence of impairment, or of the reasonableness and necessity of the proposed treatment plans, I find the applicant has failed to prove entitlement to the disputed medical benefits.
Interest
17Interest applies on the payment of any overdue benefits pursuant to Section 51 of the Schedule. There is no interest owing in this case because no benefits are payable.
Award
18The applicant seeks an award under Section 10 of Regulation 664. Under Section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant’s award claim fails because there are no benefits payable.
ORDER
19The application is dismissed
Released: August 11, 2023
Michael Beauchesne
Adjudicator