Pham v. The Co-Operators Insurance Company, 2023 CanLII 9240

Citation: Pham v. The Co-Operators Insurance Company, 2023 ONLAT 20-012423/AABS

Licence Appeal Tribunal File Number: 20-012423/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:

Si (Van) Pham

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Roberta Lee, Counsel (No Submissions)

For the Respondent: Russel Tilden, Counsel

HEARD: By way of written submissions

BACKGROUND

1The subject proceeding under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)¹ arises out of a motor vehicle accident on November 24, 2018.

2A written hearing was scheduled for January 31, 2022. The records indicate that a case conference was scheduled on April 1, 2021 and a second, on August 5, 2022. However, it appears the applicant failed to attend both case conferences.

3On November 26, 2021, a Notice of Written Hearing was sent to applicant counsel, advising of the upcoming written hearing date, including the deadlines for submissions. A second reminder, including the August 5, 2021 Tribunal Order was sent on January 11, 2022.

4On February 3, 2022, correspondence from the Tribunal was sent by way of electronic mail, advising applicant counsel that submissions were due on January 7, 2022, and reply submissions, if any, were due on January 28, 2022.

ISSUES IN DISPUTE

5The issues in dispute are as follows:

a. 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?

b. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from December 1, 2018 to date and ongoing?

c. Is the applicant entitled to $2,681.61 for chiropractic services, proposed by VIP Health Care in a treatment plan (OCF-18) dated December 15, 2018?

d. Is the applicant entitled to $2,212.90 for chiropractic services, proposed by VIP Health Care in an OCF-18 dated January 9, 2019?

e. Is the applicant entitled to $1,944.93 for psychological services, proposed by Dr. Steiner in an OCF-18 dated January 3, 2019?

f. Is the applicant entitled to $1,012.86 for chiropractic services proposed by VIP Health Care in an OCF-18 dated January 9, 2019?

g. Is the applicant entitled to $20.97 for a medication expense submitted on a claim form (OCF-6) on February 2, 2019?

h. Is the applicant entitled to $12.00 for a medication expense submitted on an OCF-6 on April 22, 2019?

i. Is the applicant entitled to $490.62 ($949.37, less amount approved of $458.75) for physiotherapy services proposed in an OCF-18 dated January 9, 2019?

j. Is the applicant entitled to $710.00 ($1,285.00, less amount approved of $575.00) for chiropractic services, proposed by VIP Health Care in an OCF-18 dated December 31, 2019?

k. Is the applicant entitled to $312.33 for the completion of an OCF-3 submitted on May 25, 2019?

l. 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?

m. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6The application is dismissed as abandoned.

ANALYSIS

7Pursuant to Tribunal Rule 3.4², the Tribunal may dismiss an application without a hearing if the applicant is found to have abandoned the proceeding. Before doing so, pursuant to Tribunal Rule 3.5, the Tribunal is required to provide the parties notice of its intention to dismiss the appeal, the reasons for the Tribunal’s intention to dismiss, to inform the parties of the right to make written submissions, and consider any written submissions provided.

8Pursuant to Tribunal Rule 3.5, I find that such notice was given in the November 26, 2021 correspondence, wherein it advised, that if the applicant did not make submissions, a decision may be made without their participation, and they will not be entitled to any further notice in the proceeding.

9To date, neither the Tribunal nor the respondent have been served with any productions or submissions regarding the issues in dispute. The onus is on the applicant to demonstrate that he is entitled to the benefits claimed. His failure to provide submissions or evidence, medical or otherwise is unhelpful.

10There is no evidence that any and all previous correspondence was not received, or that the applicant or his counsel has failed to receive any of the notices. Further, the applicant has a duty to ensure that their contact information is updated with the Tribunal.

11As such, I find that the applicant was provided with all reasonable and proper notice and has failed to file submissions addressing his position and intent on the disputed claims. Accordingly, I find that he has abandoned his claim pursuant to Tribunal Rule 3.4.

ORDER

12The applicant has abandoned his claim, his appeal is dismissed.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Tribunal Rules”)