Thomacin v. Allstate Canada, 2024 CanLII 59534

Citation: Thomacin v. Allstate Canada, 2024 ONLAT 23-000700/AABS

Licence Appeal Tribunal File Number: 23-000700/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.

Parties

Between:

Rosvelt Thomacin

Applicant

and

Allstate Canada

Respondent

DECISION

ADJUDICATOR: Ludmilla Jarda

APPEARANCES:

For the Applicant: Rosvelt Thomacin, Self-Represented (Did not attend)

For the Respondent: Kajitha Kamal, Adjuster Peter Yoo, Counsel

HEARD by Videoconference: May 13, 2024

OVERVIEW

1Rosvelt Thomacin (the “applicant”) was involved in an automobile accident on January 25, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Allstate Canada (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2This matter was scheduled for a 6-day videoconference hearing, set to begin at 9:30 am on May 13, 2024.

3According to Vice Chair E. Louise Logan’s Motion Order released on May 16, 2024, she presided over a motion to remove a representative at the commencement of the hearing on May 13, 2024 pursuant to Rule 24.5 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). Based on paragraph 5 of the Motion Order, despite the Tribunal’s attempt to contact the applicant, he did not attend the hearing. Vice Chair Logan waited until 10:00 am before proceeding with the motion in the applicant’s absence. Following the hearing of the motion, Vice Chair Logan ordered the removal of the applicant’s representatives effective May 13, 2024 at 11:00 am.

4The hearing resumed before me at 11:05 am. The applicant was still not in attendance, and a reason was not provided for his continued absence. The hearing proceeded in the applicant’s absence and concluded at 12:15 pm.

5This is the applicant’s third application to the Tribunal. The first application, bearing Tribunal File Number 19-011416/AABS, was withdrawn at the case conference held on July 20, 2020. The second application, bearing Tribunal File Number 21-001998/AABS, was scheduled to proceed to a 9-day videoconference hearing set to commence on January 23, 2023, and it was withdrawn prior to the hearing.

6In my view, it is appropriate for this videoconference hearing to proceed in the absence of the applicant pursuant to s. 7(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”). I am satisfied the applicant received notice of today’s videoconference hearing on or about November 17, 2023. The Tribunal sent the notice based on the contact information provided by the applicant. This file is over 479 days old. If the applicant had different contact information, he had the obligation under Rule 4.4 to notify the Tribunal and the respondent of that fact. In keeping with Rule 3.1, I find that proceeding with the hearing is an efficient and proportional resolution of the dispute.

ISSUES

7The issues in dispute are:

1. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from May 2, 2019, to date and ongoing?
2. Is the applicant entitled to attendant care benefits (“ACB”) in the amount of $1,034.31 per month from June 26, 2019, to March 25, 2021?
3. Is the applicant entitled to ACB in the amount of $2,539.26 per month from March 25, 2021, to date and ongoing?
4. Is the applicant entitled to $45.00 ($1,300 less $1,255.00 approved) for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 (“treatment plan”) dated March 20, 2020?
5. Is the applicant entitled to $4,912.80 for psychological services, proposed by 101 Assessments in a treatment plan dated July 13, 2020?
6. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan dated June 3, 2019?
7. Is the applicant entitled to $2,686.00 for a chronic pain assessment, proposed by 101 Assessments in a treatment plan dated July 20, 2020?
8. Is the applicant entitled to $2,686.00 for a neurological assessment, proposed by 101 Assessments in a treatment plan dated August 10, 2020?
9. Is the applicant entitled to $2,686.00 for functional abilities assessment, proposed by 101 Assessments in a treatment plan dated August 14, 2020?
10. Is the applicant entitled to $2,663.40.00 for a worksite assessment, proposed by 101 Assessments in a treatment plan dated August 7, 2020?
11. Is the applicant entitled to $2,460.00 for a cognitive assessment, proposed by 101 Assessments in a treatment plan dated December 8, 2020?
12. Is the applicant entitled to $2,128.51 for an attendant care needs assessment, proposed by 101 Assessments in a treatment plan dated December 8, 2020?
13. Is the applicant entitled to $2,460.00 for a psychiatric assessment, proposed by 101 Assessments in a treatment plan dated April 26, 2021?
14. Is the applicant entitled to $10,287.00 ($22,487.00 less $12,200.00 approved) for catastrophic assessments, proposed by Deena Rogozinsky in a treatment plan dated April 28, 2021?
15. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
16. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

8The applicant did not provide any evidence to the Tribunal in support of his claim for accident benefits. As a result, he has not met his evidentiary burden to demonstrate entitlement to IRB, ACB, and the disputed treatment plans. As there are no benefits payable, the applicant is not entitled to interest nor an award.

9The application is dismissed.

PROCEDURAL ISSUES

Applicant’s request to exclude evidence

10The applicant filed a Notice of Motion on April 30, 2024 seeking to exclude all the notices of denials, notices of examination, and insurer’s examination assessment reports from the hearing.

11The applicant did not attend the hearing, and no submissions were heard regarding this motion.

12In the circumstances, the Tribunal declines to grant the applicant’s request to exclude evidence.

Respondent’s request to exclude evidence

13The respondent filed a Notice of Motion on May 7, 2024 seeking to exclude the applicant’s psychiatric report dated January 16, 2024 completed by Dr. Felix Yaroshevsky and the records from 101 Physiotherapy as these documents were served beyond the timeframes set out in the Case Conference Report and Order released on November 1, 2023.

14As the applicant did not attend the hearing, the respondent withdrew its motion.

Respondent’s request to dismiss the application with prejudice

15The respondent made an oral request to dismiss the application with prejudice. The respondent stated that the applicant failed to attend the hearing, and pursuant to Rule 3.7.1, the Tribunal may make any order it considers appropriate in the circumstances.

16The respondent argued that this is the applicant’s third application and, given the history of the proceedings, the applicant should be barred from making any further applications to the Tribunal. Moreover, while the respondent acknowledged that the issue of a catastrophic impairment determination was withdrawn at the case conference, it argued that the applicant should also be barred from pursuing a catastrophic impairment determination in the future as a new claim for a catastrophic impairment determination would be an abuse of process.

17Alternatively, the respondent requested an order requiring that the applicant seek leave to file any further applications.

18I am not persuaded by the respondent’s submissions to dismiss the application with prejudice and to preclude the applicant from filing a new application for accident benefits, including an application for a catastrophic impairment determination. I am also not inclined to order that the applicant be required to seek leave to file a new application. Rather, I find that proceeding with the hearing on the merits of the issues in dispute before the Tribunal will ensure an efficient, proportional, and timely resolution of the dispute. Should the applicant choose to file a new application concerning the same claims relating to the same accident, it is open to the respondent to bring any motions it sees fit for adjudication.

ANALYSIS

Income Replacement Benefits (“IRB”)

19I find that the applicant has failed to demonstrate, on a balance of probabilities, that he is entitled to IRB in the amount of $400.00 per week from May 2, 2019 to date and ongoing.

20Two sections of the Schedule define the process required to determine entitlement to IRB. To receive payment for pre-104-week IRB under s. 5(1), the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. He must identify the essential tasks of his employment, which tasks he is unable to perform, and to what extent he is unable to perform them. To receive payment for post-104-week IRB under s. 6, the applicant must demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

21The applicant bears the burden of proving, on a balance of probabilities, that he meets these tests and criteria.

22The applicant did not tender any evidence or submissions to support his claim for IRB. As such, he has not met his burden of proving his entitlement to IRB.

23I find that there is no evidence to support that the applicant suffered from a substantial inability to perform the essential tasks of his pre-accident employment from May 2, 2019 to January 22, 2021. I further find that there is no evidence to support that the applicant suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience from January 22, 2021 to date and ongoing.

24As such, the applicant did not demonstrate, on a balance of probabilities, that he is entitled to IRB for the period of May 2, 2019 to date and ongoing.

Attendant Care Benefits (“ACB”)

25I find that the applicant has not established, on a balance of probabilities that he is entitled to ACB in the amount of $1,034.31 per month from June 26, 2019 to March 25, 2021 and to ACB in the amount of $2,539.26 per month from March 25, 2021 to date and ongoing.

26Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services provided by an aide or attendant.

27Section 42(1) of the Schedule provides that an application for ACB must be in the form of, and contain the information required to be provided in, the version of the document entitlement Assessment of Attendant Care Needs (“Form-1”).

28Section 3(7)(e) of the Schedule provides that the expenses are not incurred by an insured person unless: (i) they have received the goods or services to which the expense relates; (ii) they have paid the expense, have promised to pay the expense, or are otherwise legally obligated to pay the expense; and (iii) the person who provided the goods and services (a) did so in the course of the employment, occupation, or profession in which he or she ordinarily have been engaged, but for the accident, or (b) sustained an economic loss as a result of providing the goods or services to the insured person.

29The applicant did not tender any evidence or submissions to support that his claim for ACB is reasonable and necessary and no Form-1 has been included in the evidentiary record. Further, there is no evidence that ACB has been incurred.

30Accordingly, the applicant has not met his burden of proof to demonstrate entitlement to ACB.

31I find that the applicant has failed to demonstrate, on a balance of probabilities, that the disputed treatment plans are reasonable and necessary.

32To 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.

33The applicant has not tendered any evidence regarding his entitlement to the disputed treatment plans for physiotherapy services, psychological services, a psychological assessment, a chronic pain assessment, a neurological assessment, a functional abilities assessment, a worksite assessment, a cognitive assessment, an attendant care needs assessment, a psychiatric assessment, and catastrophic assessments. There are no submissions or evidence to support that the disputed treatment plans are reasonable and necessary. Further, the applicant has not identified the goals of the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

34Accordingly, the applicant has not met his evidentiary burden and proven that the disputed treatment plans are payable.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefit owing, no interest is payable.

Award

36Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. As I have concluded that the applicant is not entitled to IRB, ACB, or the disputed treatment plans, it follows that no benefits were unreasonably withheld. Accordingly, the respondent is not liable to pay an award.

ORDER

37The applicant failed to attend the hearing and failed to present evidence or make submissions. As it is the applicant’s burden to demonstrate entitlement to the benefits in dispute, and where the Tribunal was not presented with evidence from the applicant in support of his application, it follows that the applicant cannot be successful with his claim.

38Accordingly, I find that the applicant is not entitled to IRB, ACB, and the disputed treatment plans. As there are no benefits payable, the applicant is not entitled to interest nor an award.

39The application is dismissed.