Rajalingam v. TD General Insurance Company
Licence Appeal Tribunal File Number: 22-012982/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:
Rajeshwaran Rajalingam Applicant
and
TD General Insurance Company Respondent
DECISION
ADJUDICATOR: Bernard Trottier
APPEARANCES:
For the Applicant: Rajeshwaran Rajalingam, Applicant (self-represented)
For the Respondent: Melissa Molella, Claims Representative Michael Kennedy, Counsel Jason Meloche, Counsel
Interpreter: Naga Ramalingam, Tamil language
Court Reporter: Joyce Espino
Heard by Videoconference: February 12, 2024
OVERVIEW
1Rajeshwaran Rajalingam, the applicant, was involved in an automobile accident on March 28, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to an income replacement benefit in the amount of $728.00 per week from December 9, 2020 to date and ongoing?
iii. Is the applicant entitled to $10,794.15 for registered social worker (RSW) services, proposed by Gibson Wellness in a treatment plan/OCF-18 (“plan”) dated November 28, 2022?
iv. Is the applicant entitled to $8,100.77 for registered nurse (RN) services, proposed by Gibson Wellness in a plan dated November 28, 2022?
v. Is the applicant entitled to $13,713.08 for RSW services, proposed by Gibson Wellness in a plan dated February 27, 2023?
vi. Is the applicant entitled to $9,724.05 for RN services, proposed by Gibson Wellness in a plan dated March 2, 2023?
vii. Is the applicant entitled to $13,713.08 for RSW services, proposed by Gibson Wellness in a plan dated June 5, 2023?
viii. Is the applicant entitled to $10,436.72 for RN services, proposed by Gibson Wellness in a treatment plan dated June 5, 2023?
ix. 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?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not proven that he sustained a catastrophic impairment as defined by the Schedule.
4The applicant has not proven that he satisfies the criteria for entitlement to any further income replacement benefits.
5The applicant has not proven that the disputed treatment plans are reasonable and necessary as a result of the accident.
6An award under s. 10 of O. Reg. 664 is not payable.
7Since no income replacement benefits or treatment plans are payable, no interest is payable.
PROCEDURAL ISSUES
8On January 24, 2024, the respondent filed a Notice of Motion (NOM) with the Tribunal and served it on the applicant, requesting an Order dismissing the application as abandoned.
9On January 29, 2024, the Tribunal informed the parties that submissions on the motion would be heard at the videoconference hearing scheduled to commence on Monday, February 12, 2024.
10On Thursday, February 8, 2024, the applicant submitted a Request for an Adjournment to the Tribunal, indicating that he needed more time to obtain representation, that he had severe back pain that prevented him from walking or sitting and that he had a bad flu. The respondent did not consent to an adjournment.
11On February 9, 2024, the Tribunal informed the parties that, with less than two full business days to the scheduled hearing, they would need to attend the hearing and make submissions to the adjudicator regarding an adjournment.
ANALYSIS
An Order to dismiss the hearing as abandoned is denied
12On January 5, 2024, the respondent filed a NOM requesting that the Tribunal:
i. Dismiss the application without a hearing pursuant to Rule 3.4(c) of the License Appeal Tribunal Rules, 2023 (the “2023 Rules”); or
ii. Alternatively, issue “an Order pursuant to Rule 9.4 of the Tribunal’s Rules of Practice as the Applicant has not complied with section 9 and 10 of the Tribunal’s Rules of Practice”; or
iii. In the further alternative, stay the upcoming videoconference hearing until the applicant complies with the production orders as set out in the Case Conference Report and Order (“CCRO”) of July 17, 2023.
13On January 10, 2024, in a Motion Order adjudicated by Vice Chair Lindsay Lake, the Tribunal denied the respondent’s requests in the respondent’s NOM of January 5, 2024. In summary, the Tribunal determined that (a) the respondent had not met the statutory requirements for dismissal, (b) the hearing adjudicator will determine the admissibility of evidence and (c) the respondent did not establish the Tribunal’s authority to stay proceedings in the circumstances described by the respondent.
14In its second NOM of January 24, 2024, the respondent requests an Order under Rules 3.4 and 3.5 that the Tribunal dismiss the application as abandoned. The respondent submits that the applicant failed to comply with the production orders set out in the CCRO. Further, the respondent submits that the applicant did not submit a witness at least 30 days in advance of the scheduled 7-day hearing.
15The respondent submits that on July 31, October 12 and November 14 of 2023, it attempted to obtain the ordered productions through the applicant’s counsel, from whom it received no response. On November 24, 2023, the applicant’s counsel notified the respondent that they were removed from the record, and that they did not know if the applicant intended to appoint new counsel.
16The respondent submits that on December 1, 2023, December 5, 2023 and January 2, 2024, it attempted to contact the then self-represented applicant to obtain the ordered productions, from whom it received no response. On January 16, 2023, the respondent provided the applicant with its final witness list and the applicant did not respond to this correspondence.
17The applicant did not provide any written submissions to the January 24, 2024 NOM.
18At the hearing, the applicant submitted that he was in attendance at the hearing, representing himself, and that he had not abandoned his application.
19Under Rule 3.4 of the 2023 Rules, the Tribunal may dismiss an application without a hearing if:
a) The appeal is frivolous, vexatious, or commenced in bad faith;
b) The appeal relates to matters that are outside the Tribunal’s jurisdiction;
c) The statutory requirements for bringing the appeal have not been met; or
d) The applicant is found to have abandoned the proceeding.
20Under Rule 3.4, the burden lies with the party requesting the Order to prove the grounds for the Order.
21I decline to re-adjudicate the NOM of January 5, 2024 where the Tribunal found that the respondent had not met the statutory grounds for dismissal.
22The respondent argues in its NOM of January 24, 2024 that the applicant has abandoned the proceeding under Rules 3.4(c) and 3.4(d) above, as well as under Rule 3.5 regarding written submissions. Under Rule 3.5, a party may provide written submissions to a dismissal motion but it is not required to do so. I am not persuaded by the respondent’s arguments that the applicant’s appeal should be dismissed under Rules 3.4(c) and 3.4(d). The applicant communicated with the respondent and with the Tribunal on February 8, 2024 and his appearance before the Tribunal on February 12, 2024 indicates to me that the applicant has not abandoned his application.
23The respondent’s request to dismiss the application without a hearing is denied.
The applicant’s request for an adjournment of the hearing is denied
24On Thursday, February 8, 2024, the applicant submitted a Request for an Adjournment to the Tribunal. On his form he indicated that he needed more time to obtain legal representation, that he had severe back pain that prevented him from walking or sitting and that he had a bad flu.
25Under Rule 16.1 of the 2023 Rules, a request for an adjournment must be served on the other party prior to be being filed with the Tribunal and must include all submissions and evidence in support of the request. The submissions must include:
a) Details of the circumstances giving rise to the request;
b) Other parties’ position on the request, if known;
c) The length of the adjournment being sought;
d) Whether a prior adjournment request has been denied for this same adjudicative event.
26Under Rule 16.2, a request for an adjournment may also be made orally before an adjudicator at the hearing.
27When considering whether to grant an adjournment, the Tribunal may consider the following factors:
a) The age of the file;
b) Whether any previous adjournments have been granted and, if so, whether they were granted on a peremptory basis;
c) Prejudice to the parties;
d) Whether the request is on consent;
e) The type of event the adjournment is being requested for;
f) The length of notice that the Tribunal has provided to the parties of the event;
g) The timeliness of the request;
h) Whether the parties were given the opportunity to canvass their availability;
i) The specific reasons for being unable to proceed on the scheduled date;
j) Whether the parties can proceed on an earlier date;
k) Whether the reason for the adjournment was foreseeable and avoidable, and what efforts, if any, were made to avoid the reason for the adjournment;
l) The length of the requested adjournment and whether it would unduly delay the proceedings;
m) Broader institutional and public interests;
n) Legislative requirements;
o) The principles of natural justice and fairness;
p) Operational considerations; and
q) Any other factors considered relevant in deciding the request.
28The applicant’s request for an adjournment for the purpose of obtaining legal representation is denied.
29The applicant did not provide any evidence with his Request for an Adjournment that he had made any attempts to obtain legal representation from the time that his representative was removed from the record on November 24, 2023 to the date of the hearing on February 12, 2024, a period of over 2.5 months. The applicant neither provided any evidence nor made any submissions at the hearing of any attempts to obtain representation over that time period.
30I have no evidence before me that the applicant made any attempts to obtain legal representation from the time that his counsel removed themselves from the record. Under Rule 24.1, a party may be self-represented or they may have a representative authorized by the Law Society Act to represent them at a proceeding. The applicant’s former counsel served their Removal of Representative form on the applicant on November 24, 2023. Since it was filed more than 30 calendar days before the hearing, no further steps under Rule 24.5 were required of the applicant’s former counsel.
31The responsibility to obtain representation for the hearing lies with the applicant. Since I have no evidence or submissions before me that the applicant took any steps to obtain representation, I decline to grant an adjournment to provide the applicant more time for that purpose. Under Rule 16.3, I considered the following factors in denying the adjournment for the purpose of obtaining representation:
i. Age of the file: The date of the accident was March 28, 2016 and the Tribunal application was filed on November 29, 2022. The applicant had legal representation for almost a year from the date of the Tribunal application to his counsel’s removal from the record, if not before. The Tribunal would consider this matter an aged file and the parties are entitled to timely resolution of the matter;
ii. Consent: The adjournment request is not on consent;
iii. Timeliness: The adjournment request was filed less than two business days before the start of the 7-day hearing;
iv. Avoidability: The reason for the adjournment, for the purpose of obtaining representation, was foreseeable and no apparent efforts were made by the applicant to avoid the reason.
32As evidence of the need for an adjournment for health reasons, the applicant provided a note from his family physician, Dr. R.I. Asirwatham, dated and submitted on February 9, 2024. Dr. Asirwatham’s note indicated that the applicant “was seen in the office for medical reasons” and that the applicant “should not participate in gym or sports for medical reasons” until February 15, 2024.
33The applicant also submitted as evidence a prescription from Dr. Asirwatham dated February 9, 2024. The prescription was for Bio-Gabapentin (300 mg), Remeron (30 mg) and Olanzapine (15 mg). The applicant also submitted as evidence a prescription summary from Supercare Pharmacy indicating that a prescription for 250 mg tablets of Azithromycin (an antibiotic) was filled on February 9 (the only prescription filled), with instructions to take one tablet daily for the next five days.
34At the hearing, the applicant submitted that he could not proceed with the hearing because of his health. He submitted that he was admitted to the hospital emergency the night before the hearing due to an injury to his arm and that he had lost a considerable amount of blood. At the videoconference hearing, the applicant showed the participants his bandaged arm. He submitted as well that he was given some pain medication for his back pain.
35The respondent submitted that it has complied with all of the requirements for productions, witness lists and document briefs, and that it was ready to proceed with the hearing. The respondent submits that they tried contacting the applicant on several occasions leading up to the hearing, both when he had legal representation and while he was self-represented, and that the Thursday before the hearing was the first time they had heard from the applicant since November 24, 2023.
36The respondent argued that an adjournment would just delay the hearing and that no new evidence or witness testimony would be admitted since the applicant had not complied with any of the orders from the CCRO.
37The applicant’s request for an adjournment for health reasons is denied.
38Under Rule 16.1(a), the party requesting an adjournment must provide details of the circumstances giving rise to the request. Between the request for an adjournment on February 8, 2024 and the hearing on February 12, 2024, the applicant’s explanation of the circumstances changed. On February 8, 2012, the applicant submitted that his health challenges consisted of back pain and a flu. On February 12, 2024, the applicant submitted that he sustained arm injury and he had lost blood, in addition to his back pain and a flu.
39I am not persuaded by the applicant’s arguments for an adjournment for health reasons for the following reasons:
i. Dr. Asirwatham’s note of February 9, 2024 indicates that the applicant “should not participate in gym or sports for medical reasons.” There is no indication that the applicant could not sit through a hearing in the physician’s note.
ii. The prescription summary indicated a prescription for Azithromycin (an antibiotic) filled on February 9, 2024. The applicant did not provide any submissions regarding how the recently prescribed antibiotic would prevent him from proceeding with the hearing, or how the prescriptions were evidence of his inability to proceed with the hearing for health reasons;
iii. Between the Request for an Adjournment on February 8 and the hearing on February 12, 2024, the applicant’s stated health reasons for an adjournment changed. The only evidence the applicant submitted for the arm injury sustained the night before the hearing was a visual display of a bandage on his arm. The applicant did not provide any documentary evidence that he was submitted to a hospital emergency, as he claimed. At the same time, I am not persuaded that the arm injury would prevent the applicant from proceeding with the hearing.
iv. The applicant submitted that his health condition with his back pain was known since mid-December. The applicant filed his Request for an Adjournment on the Thursday afternoon before the Monday morning hearing. A late request for an adjournment for this reason was foreseeable and avoidable.
40I decline to grant an adjournment to for the applicant’s stated health reasons. Under Rule 16.3, I considered the following factors in denying the adjournment to obtain an adjournment for health reasons:
i. The specific reasons for being unable to proceed with the hearing on the scheduled date because of back pain and the flu were not supported by the evidence submitted by the applicant, namely his family physician’s note and the prescription summary;
ii. The specific reason for being unable to proceed with the hearing because of an arm injury and blood loss, and the admittance to a hospital emergency department the night before, was not supported by documentary evidence;
iii. The specific reason for being unable to proceed with the hearing because of back pain was foreseeable and avoidable, and the applicant did not make any submissions on what efforts were made to avoid this reason for the adjournment;
iv. The request for an adjournment was untimely, made on the Thursday afternoon before a Monday morning hearing.
41For the reasons above, I deny the applicant’s request for an adjournment.
The applicant failed to prove that he suffered a catastrophic impairment as defined by the Schedule, that he satisfies the criteria for entitlement to any further income replacement benefits or that the disputed treatment plans are reasonable and necessary as a result of the accident.
42For the purposes of the Schedule, an impairment is a catastrophic impairment if an insured person sustains the impairment in an accident that occurs on or after June 1, 2016 and the impairment results in any of the following:
i. Paraplegia or tetraplegia;
ii. Severe impairment of ambulatory mobility or use of an arm, or amputation;
iii. Loss of vision of both eyes;
iv. If the insured person was 18 years of age or older at the time of the accident, a traumatic brain injury.
43To receive payment for a post-104-week income replacement benefit (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.
44To 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.
45In all cases above, the burden of proof lies with the applicant.
46As indicated previously, the application failed to comply with the production orders from the CCRO of July 27, 2023. The applicant did not submit a list of final witnesses, nor did he submit a document brief ahead of the videoconference hearing.
47The applicant did not make any oral submissions on catastrophic impairment.
48The applicant submits that the reason the respondent denied his entitlement to further IRBs is that he did not attend an insurer’s examination (IE). The applicant submits that he attended the IE but that the IE assessor stopped the assessment because of health reasons.
49The applicant submits that the respondent has all the health information it needs to approve the requested medical and rehabilitation benefits. The applicant submits that the medical records from his family physician and physiotherapist prove that he is entitled to the benefits sought.
50The applicant stated that he would not be submitting any evidence and that he did not intend to have any witnesses appear on his behalf.
51The respondent submits that the neither the applicant’s nor the respondent’s catastrophic impairment assessments supported the applicant’s claim to be catastrophically impaired. The respondent submits that the applicant’s IRB was terminated upon successful completion of an IE. Lastly, the respondent submits that the applicant is not entitled to any further medical and rehabilitation benefits since the respondent has paid out the non-catastrophic policy limit for medical and rehabilitation benefits.
52The respondent submits that since the applicant has not put forward any evidence to the Tribunal, he has not met his burden of proof of entitlement to benefits. The respondent submits that it does not need to put forward any evidence or have witnesses appear, since there are no arguments, supported by evidence, for the respondent to rebut.
53I agree with the respondent that the applicant has not made any arguments, supported by evidence, that he is catastrophically impaired as defined by the Schedule, that he is entitled to any further IRBs or that he is entitled to any further medical and rehabilitation benefits. The burden of proof lies with the applicant to prove his entitlement to benefits. That burden has not been met.
An award is not payable.
54Regulation 664, R.R.O. 1990 (Reg. 664) states that if the Tribunal finds that an insurer unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award, together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
55Since I have found that no benefits are payable, I do not find that the respondent unreasonably withheld or delayed payment. As a result, an award under s. 10 of Reg. 664. is not warranted.
Interest is not payable
56Since no benefits are payable, no interest is payable.
ORDER
57The applicant has not demonstrated that he is catastrophically impaired as defined by the Schedule.
58The applicant has not demonstrated that he satisfies the criteria for entitlement to any further income replacement benefits.
59The applicant has not demonstrated that the disputed treatment plans are reasonable and necessary as a result of the accident.
60The applicant is not entitled to an award.
61No interest is payable.
Released: March 5, 2024
Bernard Trottier Adjudicator