Citation: Mulugeta v. TD Insurance Meloche Monnex, 2023 ONLAT 21-015302/AABS

Licence Appeal Tribunal File Number: 21-015302/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:

Zadig Mulugeta

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR:

Mary Henein Thorn

APPEARANCES:

For the Applicant:

Zadig Mulugeta, Applicant – Attended July 10 only

Court Reporter:

Alyssa Scott

For the Respondent:

Tania Shaw, Adjuster

Paul Belanger, Counsel

HEARD: by Videoconference:

July 10, 11, 12 and 13, 2023

OVERVIEW

1Zadig Mulugeta, the applicant, was involved in an automobile accident on December 2, 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, TD Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2Mr. Mulugeta was a pedestrian involved in an accident. As a result of the injuries, he sustained in the accident, he was later deemed catastrophically impaired under criterion 8 of the Schedule.

3On September 27, 2022, the applicant’s counsel notified the Tribunal that her office would no longer be representing the applicant in this matter.

4The four-day hearing was initially scheduled to proceed on October 21, 2022. The applicant requested an adjournment on September 29, 2022 in order to allow for more time to secure counsel. The Tribunal granted the adjournment and set the hearing down for January 30, 2023. The Order was marked peremptory.

5Then, on December 14, 2022, the applicant filed a second request to adjourn the January 30, 2023 hearing because he needed more time to secure counsel. The Tribunal denied the request on the basis that insufficient information had been provided and because the previous adjournment was marked peremptory.

6Despite the denial, on January 13, 2023, the applicant again requested an adjournment of the January 30, 2023 hearing due to his inability to secure counsel. While both of the Tribunal’s previous Orders were marked peremptory, the applicant provided significantly more detail to support how he was struggling to secure counsel such that the Tribunal granted a final, four-month adjournment of the hearing in an Order dated January 18, 2023. Again, the adjournment was marked peremptory. The Order explained to the self-represented applicant that no further adjournment requests would be considered by the Tribunal.

7Notice of the four-day hearing scheduled for July 10-13, 2023 was sent to the applicant on February 17, 2023. Correspondence in the Tribunal’s file reveals that the Tribunal and the respondent were supportive of the applicant’s attempts to secure representation. Several attempts were made by the Tribunal and by the respondent to prompt the applicant to file materials, identify witnesses and advise on whether he would be proceeding as a self-represented party.

8All parties attended the hearing on July 10, 2023. At the start of the hearing, the applicant expressed that he would like a fourth adjournment as he was unprepared to represent himself and was unable to secure counsel since his first adjournment request ten months earlier, in September 2022.

9The applicant was advised that the request for a fourth adjournment was denied, and he was referred to the previous adjournment Order which was marked peremptory.

10The applicant then requested additional time to seek the help of a family member or a friend to assist him with the case management. A half hour adjournment was granted to provide the applicant time to find a support person. Upon resumption of the hearing, the applicant informed the Tribunal that he was unable to find anyone to assist him. The hearing resumed with Mr. Mulugeta as a self-represented party.

11During the hearing, with consent from the respondent, the Tribunal assisted the applicant by reading the test for each issue in dispute several times. The respondent advised the applicant that a case conference summary with an outline of the respondent’s position should be in the applicant’s possession. Each step of the hearing process was clearly explained, and the Tribunal informed the applicant that although legal advice could not be given, he could ask as many questions about the process as needed.

12The applicant was reminded the onus was on him to persuade and provide evidence to the Tribunal based on the test that was read out in order to demonstrate why he would be entitled to the benefits in dispute.

13On the first day of the hearing, the applicant spoke only to the issue of the non-earner benefit. Once the test for the attendant care benefit was explained to him, the applicant submitted that he did not know what to say about the issue and could not speak to it. The hearing was adjourned to the next day, July 11, 2023, so that the applicant could better prepare for the hearing and find someone to support him.

14On July 11, 2023 at 9:01 am, the applicant notified the Tribunal via voicemail that he needed medical attention and could not attend the hearing. Several attempts were made unsuccessfully by the Tribunal to reach the applicant in an attempt to gather more information on the applicant’s condition.

15On July 11, 2023 at 1:50 pm, the Tribunal sent an Order to the parties, accompanied by voicemail messages and e-mails, advising the applicant that that he needed to appear before the Tribunal and give submissions as to why he was unable to attend or provide a medical note supporting his inability to attend. In the absence of a medical note, the Order explained that the Tribunal may deem the application abandoned or proceed with the hearing without the applicant.

16The Tribunal received a medical note from University Health Network Department of Emergency Medicine, dated July 11, 2023 at 11:30 pm, with details of the applicant’s visit. The medical note shows he was triaged at 10:32 am and discharged at 1:52 pm. The note states that the “patient presents with minor complaints” and “It is quite unclear as to why he came in in fact. He states that he is actually feeling much better now after resting on our stretcher for approximately 3 hours”. The applicant did not follow up with the Tribunal to resume the hearing.

17The Tribunal received an email on July 12, 2023 at 8:26 am from the applicant stating that he was returning to seek medical attention as he is still feeling unwell.

18A second Order was sent out to the parties on July 12th at 5:13 pm, accompanied by further emails and voicemails, notifying the applicant that he needed to appear and give submissions as to why this matter should adjourn for another day. The order also notified the applicant that under section 7.1 and 7.3 of the Statutory Powers and Procedure Act (“SPPA”), the Tribunal may proceed with the hearing in his absence.

19On July 13th, 2023 at 8:20am the Tribunal received an e-mail with a photo of a wristband with the applicant’s name on it from Humber River Hospital, (a different hospital from the day before) and a prescription. Neither item gives a medical opinion that the applicant could not proceed with the hearing.

20The applicant has not complied with the orders sent to him, particularly the order of July 12, 2023. The order clearly stated that he must appear before the Tribunal at 9:30 am to give submissions as to why he is unable to proceed with the hearing.

21On the final day of the hearing, July 13th, 2023,the applicant failed to attend again at the scheduled time. The Tribunal received an email at 8:20 am stating that he was going to the Humber River Hospital for further medical assistance. The Tribunal attempted to contact the applicant throughout the final day of the hearing, but the applicant did not respond. The Tribunal has not received a medical note to justify his ongoing absence from the hearing or to indicate that he is prepared to present a case to support his entitlement.

22The applicant has not provided sufficient reason to order a resumption for this hearing. The medical note provided did not give a medical opinion that he is unable to continue with the matter. In fact, the note provided indicates that he submitted to the hospital staff that he was feeling better a short time after having been examined.

23Prior to issuing this order, the Tribunal waited 11 days after the hearing to give the applicant further opportunity to provide a medical opinion in support of his inability to attend the hearing. No such medical opinion has been provided to date.

24Accordingly, I am satisfied that the Tribunal has provided the applicant with ample opportunity to participate in this hearing and to accommodate him as a self-represented party. Where multiple adjournments have been granted over a ten month period, and where the applicant has not provided the Tribunal with evidence that he was unable to participate in the matter and did not respond to its communications on the final day of the hearing, pursuant to section 7 of the SPPA, the Tribunal proceeded with the hearing in the absence of the applicant.

PRELIMINARY ISSUES

Preliminary Issues: The preliminary issue to be decided is:

25Is the applicant barred from proceeding with his claim for non-earner benefits as he failed to commence his application for the benefit within two years after the respondent’s refusal to pay the amount claimed?

Substantive Issues: The issues to be decided in the hearing are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 31, 2017 to December 31, 2019?

ii. Is the applicant entitled to attendant care benefits of $879.85 per month from November 1, 2019 to date and ongoing?

iii. Is the applicant entitled to $2,693.80 for occupational therapy, proposed by Functionability in a treatment plan/OCF-18 (“plan”) denied on May 13, 2020?

iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 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

26I find the applicant is statute barred from proceeding with his claim for non-earner benefits as he failed to commence his application for the benefit within two years after the respondent’s refusal to pay the amount claimed.

27The applicant is not entitled to non-earner benefits in the amount of $185.00 per week from December 31, 2017 to December 31, 2019.

28The applicant is not entitled to attendant care benefits of $879.85 per month from November 1, 2019 to date.

29I find the proposed occupation therapy treatment in the amount of $2,693.80 for proposed by Functionability in a treatment plan/OCF-18 (“plan”) unreasonable and not necessary.

30The applicant is not entitled to interest.

31I do not find in favour of an award.

ANALYSIS

Preliminary Issue – Non-Earner Benefit

32I find the applicant is statute barred from proceeding with his claim for non-earner benefits as he failed to commence his application for the benefit within two years after the respondent’s refusal to pay the amount claimed, pursuant to s. 55 of the Schedule.

33The respondent denied the claim for non-earner benefits on August 31, 2018 and the applicant filed an application with the Tribunal to dispute the denial on December 14, 2021, over two years past the denial date.

34The applicant did not testify or present any evidence to rebut the respondent’s assertion that he failed to dispute the respondent’s denial of his non-earner benefit within the limitation period provided by s. 56 of the Schedule.

35Given that no submissions were made by the applicant, I agree with the respondent that the applicant failed to dispute the denial of his non-earner benefit claim within two years. As a result, I find the applicant statute is barred from proceeding with his claim for the non-earner benefit under s. 55.

Non Earner Benefit

36The applicant is statute barred from proceeding with the non earner benefit for the reasons stated above. Accordingly, where he presented no evidence to support entitlement, and where he failed to dispute the denial within the limitation period, it follows that he is not entitled to this benefit.

Attendant Care Benefit

37The applicant is not entitled to attendant care benefits as he has not demonstrated entitlement and has not provided evidence that attendant care services have been incurred.

38Pursuant to section 19 of the Schedule, an insurer is required to pay an Attendant Care Benefit (“ACB”) for all reasonable and necessary expenses “incurred” on behalf of an insured person as a result of a motor vehicle accident for services provided by an aid or attendant.

39However, if a family member or friend is providing attendant care and is not regularly employed as such (see s. 19(3), para. 4) or in an equivalent role or is not suffering an economic loss by providing such care, then no expense has been “incurred” and the insurer is not required to pay for the benefit.

40The applicant testified on day one of the hearing that he resides with his disabled mother at her place of residence. He submitted that modifications are made in the home to accommodate her disability, which in turn provides assistance to him. He has not provided any reasoning or testimony that he should be entitled to the attendant care benefit.

41However, critically, the applicant did not provide an OCF-1 completed by an occupational therapist, he did not provide an invoice from his mother or an aide for caregiving services, nor has he proven an economic loss to her as required by the legislation to be eligible for attendant care services. In the absence of this information, the Tribunal cannot find that he is entitled to ACBs or that same are payable.

42I find the applicant did not meet his onus of proving entitlement to ACBs.

Occupational Therapy Treatment

43I find the proposed occupational therapy treatment is not reasonable and necessary.

44The onus is on the applicant to prove how he would benefit from this treatment and why it is reasonable and necessary.

45The applicant did not make submissions or provided evidence to support entitlement on this issue. No documentary evidence was provided to persuade me that the applicant would benefit from this treatment. The applicant did not call on any expert witnesses to speak to whether treatment would be reasonable and necessary, there were no summons issued and he did not request to cross examine any of the respondents’ expert witnesses who denied the reasonableness and necessity of this treatment.

46For the reasons mentioned above, I find this treatment is not reasonable or necessary, as the applicant has failed to meet his burden.

Award

47The applicant is not entitled to an award.

48The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

49The applicant has the onus to prove on a balance of probabilities that the respondent unreasonably withheld or delayed payments. The applicant did not speak to the issue of an award, nor did he provide any evidence that the respondent acted in bad faith or explain to the Tribunal which benefits were unreasonably withheld or delayed. Therefore, I have not been persuaded that benefits were unreasonably withheld or delayed

Interest

50The applicant is not entitled to interest for the issues in dispute.

51Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

52As no benefits are payable, it follows that interest is not applicable.

ORDER

i. The applicant is statute barred from proceeding with his claim for non-earner benefits.

ii. The applicant is not entitled to attendant care benefits.

iii. The applicant is not entitled to attendant care benefits.

iv. The proposed occupational therapy treatment is not reasonable and necessary.

v. The applicant is not entitled to an award.

vi. The applicant is not entitled to interest.

vii. The application is dismissed.