Maclellan v. The Personal Insurance Co.
Licence Appeal Tribunal File Number: 23-003489/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:
Heather Maclellan
Applicant
and
The Personal Insurance Co.
Respondent
DECISION
VICE-CHAIR: Craig Mazerolle
APPEARANCES:
For the Applicant: No submissions
For the Respondent: Christopher Lupis, Counsel
HEARD: By way of Written Submissions
OVERVIEW
1Heather Maclellan, the applicant, was involved in an automobile accident on April 7, 2021, 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, The Personal Insurance Co., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2In a case conference report and order released on November 28, 2023, the Tribunal ordered the dispute to proceed to a written hearing. The Tribunal scheduled a written hearing for July 12, 2024, with the Notice of Written Hearing e-mailed to the parties on November 30, 2023.
3The applicant’s initial submissions were due on June 12, 2024. The applicant has not provided any written submissions to the Tribunal. There has also been no Notice of Motion filed by the applicant seeking to extend the initial submissions deadline.
4The respondent filed submissions with the Tribunal stating it has not received submissions from the applicant. It is seeking a dismissal of the application.
ISSUES
5As listed in the case conference report and order, the preliminary issues in dispute are:
i. Is the applicant barred from proceeding to a hearing for all of the benefits claimed in this application because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?
ii. In the alternative, is the applicant barred from proceeding to a hearing for the following benefit: substantive issue 2 because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?
6The substantive issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to the assessments proposed by A&B Medical Assessments, as follows:
a. $2,486.00 for a psychological assessment, in a treatment plan dated August 17, 2021, submitted September 13, 2021 and denied September 16, 2021?
b. $2,486.00 for a chronic pain assessment, in a treatment plan dated June 6, 2022 and denied June 15, 2022?
iii. Is the applicant entitled to $142.70 for massage therapy, submitted on a claim form (OCF-6) dated September 20, 2021?
iv. Is the applicant entitled to $330.00 for physiotherapy, submitted on a claim form (OCF-6) dated November 2, 2021?
v. Is the applicant entitled to $154.00 for physiotherapy, submitted on a claim form (OCF-6) dated November 16, 2021?
vi. Is the applicant entitled to $144.85 for physiotherapy, submitted on a claim form (OCF-6) dated November 29, 2021?
vii. Is the applicant entitled to $77.00 for physiotherapy, submitted on a claim form (OCF-6) dated November 30, 2021?
viii. Is the applicant entitled to $154.00 for physiotherapy, submitted on a claim form (OCF-6) dated December 13, 2021?
ix. Is the applicant entitled to $77.00 for physiotherapy, submitted on a claim form (OCF-6) dated December 22, 2021?
x. Is the applicant entitled to $77.00 for physiotherapy, submitted on a claim form (OCF-6) dated January 31, 2022?
xi. Is the applicant entitled to $455.29 for physiotherapy, submitted on a claim form (OCF-6) dated April 18, 2023?
xii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xiii. Is the applicant entitled to interest on any overdue payment of benefits?
ANALYSIS
7Section 7(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 states that, if notice of a written hearing has been given to a party who does not then participate in the hearing in accordance with the notice, the Tribunal may proceed with the hearing in the absence of that party’s participation. I am satisfied that both parties received notice of the written hearing, so I shall proceed without submissions from the applicant.
8The applicant has the onus of demonstrating removal from the MIG, as well as entitlement to the medical benefits and interest in dispute. By not filing any submissions or evidence with the Tribunal, I find that the applicant has not met this burden.
9I further find that the applicant did not file a Notice of Motion requesting an extension of the initial submission deadline.
10Due to these findings, I can then conclude that the preliminary issues are moot.
ORDER
11As the applicant has made no submissions and tendered no evidence in support of the claims before the Tribunal, the applicant has not demonstrated removal from the MIG, nor has she demonstrated entitlement to the medical benefits and interest in dispute.
12The preliminary issues listed in the case conference report and order are moot.
13The application is dismissed.
Released: January 30, 2025
Craig Mazerolle Vice-Chair