Dao v. Cooperators General Insurance Co.
Licence Appeal Tribunal File Number: 20-009044/AABS and 20-009048/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:
Patrick Dao
Applicant
and
Cooperators General Insurance Co.
Respondent
DECISION AND ORDER
ADJUDICATOR:
Lyndra Griffith
APPEARANCES:
For the Applicant:
Patrick Dao, Self-represented (Did Not Attend)
Desiree Dao, Applicant’s Daughter
For the Respondent:
Ashley Lesperance, Adjuster
Emily Schatzker, Counsel
Mark Pascoal, Counsel
Court Reporter:
Sharon Kemp
HEARD: by Teleconference:
November 29, 2022
REASONS FOR DECISION AND ORDER
BACKGROUND
1The applicant was involved in automobile accidents on December 14, 2018, and May 7, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016).The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).
2This file has been with the Tribunal for over 844 days without a hearing on the issues in dispute. A two-day hearing was scheduled to begin on January 27, 2022 on the issues of the Minor Injury Guideline, non-earner benefits and medical and rehabilitation benefits.
3The hearing was adjourned on two separate occasions and the most recent adjournment was on July 29, 2022. On July 27, 2022, the applicant filed a request to adjourn the hearing scheduled to commence on August 2, 2022 due to an unexpected and sudden departure of the responsible lawyer due to a medical emergency and there are no other lawyers available. The adjournment was granted, and it was marked peremptory on the applicant. Vice-Chair Boyce ordered that no further adjournment requests from the applicant will be considered.
4A new hearing was set for November 29, 2022 and on August 16, 2022, the Tribunal received an email from the applicant’s representative withdrawing themselves from the record.
5The notice of hearing was sent by the Tribunal to the applicant’s email address. On November 25, 2022 the applicant notified the Tribunal by email to advise that he didn’t have counsel and that he asked the respondent for an “extension” so that he could get all his documents together to represent himself. He was notified by the Tribunal that day that would need to attend the hearing and request an adjournment at the hearing if necessary.
6At the hearing, the applicant did not attend. The applicant’s daughter attended on his behalf to notify the Tribunal that the applicant was unable to attend due to unforeseen circumstances. No other information was provided. The matter was stood down for 45 minutes to allow the applicant to attend, and I requested that that the applicant’s daughter advise him to join the hearing. I also requested the case management officer to attempt to contact the applicant by telephone and email. However, the telephone number went directly to voicemail, and the applicant did not reply or acknowledge the email communication.
7Section 7(3) of the Statutory Powers Procedure Act (“SPPA”) permits this Tribunal to proceed with the electronic hearing, i.e., by video, where a party fails to attend. I must then be satisfied that a proper Notice of Hearing was issued to the applicant. Sections 6(1), 6(2) and 6(5) of the SPPA specify the information required to be in a proper Notice of Hearing. This includes the date, time, purpose and the details about the manner in which the hearing will be held. Having reviewed the Notice of Hearing for this video hearing, I find that it contains the required information. Further, s. 6(5)(c) of the SPPA requires that the Notice of Hearing inform all parties that they may request an oral hearing, i.e., in-person, where the requesting party can satisfy the Tribunal that it would be significantly prejudiced by an electronic hearing. Having reviewed the Tribunal’s file for this matter, I find no such request by the applicant and no Tribunal order changing this hearing’s method. I am satisfied that this video hearing was convened properly, and that the applicant was sent the Notice of Hearing to his address on file.
8At the hearing, the respondent sought to add the issue of costs in accordance with Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (“Rules”). Rule 19 allows the Tribunal to consider a request for costs at any time prior to the release of the Tribunal’s decision, and I agreed to add this issue to the issues in dispute. This issue shall be heard in writing to allow the applicant the opportunity to respond the added issue of costs.
ISSUES
9The issues to be decided are:
Accident – May 7, 2019 – File #: 20-09048/AABS
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?
Is the applicant entitled to a non-earner benefit of $185.00 per week from May 7, 2019 to date and ongoing?
Is the applicant entitled to $1,300.00 for chiropractic services recommended by Islington North Chiropractic in a treatment plan (OCF-18) submitted on October 12, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent entitled to costs?
Accident – December 14, 2018 – File #: 20-009044/AABS
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?
Is the applicant entitled to $2,486.00 for chronic pain assessment recommended by Injury Management and Medical Assessments in a treatment plan (OCF-18) submitted on December 16, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent entitled to costs?
RESULT
10Accident – May 7, 2019 – File #: 20-09048/AABS
i. The applicant is not entitled to benefits above the Minor Injury Guideline $3,500.00 limit.
ii. The applicant is not entitled to a non-earner benefit.
iii. The applicant is not entitled to $1,300.00 for chiropractic services recommended by Islington North Chiropractic in a treatment plan (OCF-18) submitted on October 12, 2019?
iv. The applicant is not entitled to interest.
11Accident – December 14, 2018 – File #: 20-009044/AABS
i. The applicant is not entitled to benefits above the Minor Injury Guideline $3,500.00 limit
ii. The applicant is not entitled to $2,486.00 for chronic pain assessment.
iii. The applicant is not entitled to interest
12The written submissions on the remaining issue of costs are due as follows:
a. The respondent’s submissions and evidence shall be served and filed no later than 30 days after the release of this decision up to a maximum of 10 pages;
b. The applicant’s submissions and evidence shall be served and filed no later than 45 days after the release of this decision up to a maximum of 10 pages; and,
c. The respondent’s reply submissions, if any, shall be served and filed no later than 5 business days after the receipt of the applicant’s written submissions up to a maximum of 5 pages.
d. The page limits are exclusive of evidence and case law.
ANALYSIS
13The applicant bears the burden of proving both his entitlement to benefits and the amount of such benefit on a balance of probabilities, i.e., more likely than not.
14The applicant’s opportunity to present his evidence and make oral submissions was at the hearing. The applicant did not make any written submissions on this matter. As a result of the applicant not providing any submissions or evidence for the purpose of the hearing, the applicant has not met his burden of proving his entitlement to an income replacement benefit. I therefore find that the applicant is not entitled to the benefits being claimed.
ORDER
15Accident – May 7, 2019 – File #: 20-09048/AABS
i. The applicant is not entitled to benefits above the Minor Injury Guideline $3,500.00 limit.
ii. The applicant is not entitled to a non-earner benefit.
iii. The applicant is not entitled to $1,300.00 for chiropractic services recommended by Islington North Chiropractic in a treatment plan (OCF-18) submitted on October 12, 2019?
iv. The applicant is not entitled to interest.
16Accident – December 14, 2018 – File #: 20-009044/AABS
i. The applicant is not entitled to benefits above the Minor Injury Guideline $3,500.00 limit
ii. The applicant is not entitled to $2,486.00 for chronic pain assessment.
iii. The applicant is not entitled to interest
17The written submissions on the remaining issue of costs are due as follows:
a. The respondent’s submissions and evidence shall be served and filed no later than 30 days after the release of this decision up to a maximum of 10 pages;
b. The applicant’s submissions and evidence shall be served and filed no later than 45 days after the release of this decision up to a maximum of 10 pages; and,
c. The respondent’s reply submissions, if any, shall be served and filed no later than 5 business days after the receipt of the applicant’s written submissions up to a maximum of 5 pages.
d. The page limits are exclusive of evidence and case law.
18Submissions shall be double-spaced, 12-point, Arial or Times New Roman font and be indexed, bookmarked/tabbed and consecutively page numbered. Submissions shall make specific reference to the evidence and law by tab and page number. Evidence not referred to may not be reviewed.
Released: February 7, 2023
__________________________
Lyndra Griffith
Adjudicator