Citation: Banerjee v. Economical Insurance Company, 2025 ONLAT 23-008842/AABS

Licence Appeal Tribunal File Number: 23-008842/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:

Pratim Banerjee

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Mary Henein Thorn

APPEARANCES:

For the Applicant:

Pratim Banerjee, Applicant

Lisa Zeraldo, Applicant’s Spouse

For the Respondent:

Stephen Whibbs, Counsel

Maryam Aziz, Counsel

Court Reporter:

Alyssa Scott

HEARD: by Videoconference:

July 7, 2025

OVERVIEW

1Pratim Banerjee, the applicant, was involved in an automobile accident on March 28, 2018, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant filed an application with the Tribunal on July 27, 2023 and a case conference was held on February 13, 2024. The applicant was represented at the case conference and on consent, the matter was set down for a four day videoconference hearing which was set for August 6, 2024.

3On May 27, 2024, the Tribunal received a notice that applicant’s counsel was no longer representing the applicant. Since that time, the applicant has had difficulty since retaining new counsel and therefore he has been relying on his common law spouse (“spouse”), Lisa Zeraldo, to act as his representative before the Tribunal.

4On July 31, 2024, the applicant’s spouse sent an email to the Tribunal requesting an adjournment ahead of the hearing scheduled for August 6, 2024. The Tribunal did not respond to the email.

5On behalf of the applicant at the start of the hearing the applicant’s spouse made reference to the email she sent on July 31, 2024 to the tribunal noting that the Tribunal did not respond. She orally requested an adjournment on behalf of the applicant. She testified that the applicant suffers undiagnosed impediments which would not allow him to represent himself in this matter and he was not able to secure counsel prior to the hearing. He needed an adjournment to find alternative counsel.

6The request was denied. Neither the applicant nor the applicant’s spouse provided sufficient evidence that the applicant was mentally incapacitated, and he could not proceed with the hearing. Pursuant to Rule 16.3 of the Licence Appeal Tribunal Rules 2023, (“Rules”) I found insufficient reason to adjourn the hearing therefore we proceeded.

7On September 19, 2024, the Divisional Court released its decision in Fernandez v. Commonwell Mutual Insurance, 2024 ONSC 5180 (“Fernandez”). Upon review of the principles emphasized in Fernandez v. Commonwell Mutual Insurance, 2024 ONSC 5180 (“Fernandez”), regarding an applicant’s right to a fair determination of their matter on its merits, which often involves the ability to be represented by counsel. Given that the Fernandez case has similar aspects to the circumstances surrounding this hearing, I invited the parties to provide submissions on how Fernandez applies in this case.

8Upon review of the parties’ submissions, I granted the previously denied adjournment and ordered the matter to proceed no more than 3 months from the date the Adjournment Order which was released which was on February 24, 2025.

9The applicant sought another adjournment order on May 12, 2025 which was granted. The adjournment was marked peremptory, and it was ordered the hearing was to proceed within 90 days of the order which was released on May 13, 2025.

10On July 7, 2025, we proceeded with the hearing. Ms. Lisa Zeraldo advised at the start of the hearing the applicant was unable to secure counsel. She acknowledged the adjournment order dated May 12, 2025 was marked peremptory and was agreeable to proceed with the hearing.

ISSUES

11The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from April 6, 2019, to date and ongoing?

ii. Is the applicant entitled to attendant care benefits in the amount of $1,208.30 per month from August 19, 2019, to date and ongoing?

iii. Is the applicant entitled to $3,042.64 for psychological services, proposed by Scarborough Physio and Rehab Centre in a treatment plan/OCF-18 submitted August 8, 2021?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

12At the start of the hearing, the applicant withdrew issue number 3 as listed in the application, specifically whether he was entitled to attendant care benefits from February 3, 2020 to February 28, 2020 in the amount of $1,006.82 per month. The above reflects the issue withdrawal.

RESULT

13The applicant is not entitled to an income replacement benefit (IRB).

14The applicant is not entitled to attendant care benefits.

15The applicant is not entitled to the treatment plan for psychological services.

16The respondent is not liable to pay an award under s. 10 of Reg. 664.

17The applicant is not entitled to interest.

PROCEDURAL ISSUES

18The respondent submitted the applicant did not exchange a document brief or any evidence, nor did he provide a witness list 45 days before the hearing pursuant to Rule 9.4.2(b).

19On behalf of the applicant, his spouse confirmed there were no records to be entered into evidence, the applicant’s spouse requested at the start of the hearing to testify on behalf of the applicant. The respondent did not oppose the applicant’s spouse’s testimony, therefore I agreed to allow her to testify on behalf of the applicant.

ANALYSIS

The applicant is not entitled to a pre-104 week IRB

20I find that the applicant did not demonstrate on the balance of probabilities that he is entitled to pre-104 week IRB.

21To receive payment for an IRB under s. 5(1) of the Schedule, 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. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

22The applicant’s spouse testified that the applicant is unable to work. Prior to the accident, he worked as a human resources professional and was building himself a promising career. Currently, he is unable to drive or shower, he needs continuous monitoring as he cannot be left alone, and he has been exhibiting unexplainable behaviour. She describes his behaviour as very child-like, he seems to be unable to differentiate the difference between right and wrong, he is unpredictable in his behaviour, and he has an inability to communicate effectively. She testified that he has a complete inability to live a normal life or be independent. She also testified the applicant tried to do what he could to have a normal life; for example, he tried to work as a labourer; however, even after being placed in several different departments, he was dismissed because he exhibited odd behaviour and was not able to perform his duties.

23The applicant did not provide me with any medical documentation or expert witness testimony in support of his position. The applicant did not testify. I find that the applicant’s evidence is insufficient to prove that he is entitled to a pre-104 week IRB.

24I find the testimony of the applicant’s evidence is insufficient to meet the test for pre-104 week IRB.

25Aside from the applicant’s spouse’s general testimony that he was previously employed in the area of human resources, the evidence does not indicate what his previous employment duties were, which ones were essential tasks of that employment, and what tasks he is unable to do. Therefore, I am unable to determine if he is substantially unable to complete the essential tasks of his previous employment.

26For completeness, however, I note the respondent disagrees with the applicant’s position and submits the section 44 assessors reports and the surveillance conducted from the date of the accident to January 18, 2025 do not support the applicant’s position.

27The respondent relies on the opinion of section 44 assessors Dr. Monique Costa El-Hage, psychologist, in a report dated April 18, 2019; Dr. Yuri Marchuk, medical doctor, in a report dated March 29, 2019; and Dr. Garry Moddel, physiatrist, in his report dated April 18, 2019. The respondent also relied on chiropractor Dr. Paul Cha’s functional abilities evaluation dated April 18, 2019. The conclusion of the section 44 assessors is that the applicant did not have a substantial inability to perform the essential tasks of his pre-accident employment.

28All of the section 44 assessors who assessed the applicant agree the applicant does not suffer a complete inability to perform the essential tasks of hie pre-accident employment.

29Dr. Costa El-Hage and Dr. Cha found issues with validity when testing the applicant, Dr. Costa El-Hage opined the applicant presented with what appears to be an Adjustment Disorder with Mixed Anxiety and Depressed Mood she also noted the applicant reported that he was experiencing cognitive difficulties which she opined should be further explored. Her final opinion is that the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment. In fact, a return to work in her opinion would likely result in improved psychological functioning.

30Dr. Marchuk also came to the same conclusion. The applicant does not suffer a complete inability to perform the essential tasks of his pre-accident employment from a functional abilities perspective. Dr. Moddel also opined from a neurological perspective there aren’t any restrictions preventing the applicant from returning to work.

31Given the findings of the section 44 assessors that the applicant has no restrictions preventing his return to work and the lack of rebuttal evidence from the applicant I find the applicant has not met his burden.

32Therefore, on a balance of probabilities, I find that the applicant is not entitled to a pre-104 week IRB.

The applicant is not entitled to a post-104 week IRB

33The applicant is not entitled to post 104 week IRB.

34The test for a post-104 week IRB in section 6 of the Schedule is more stringent than that of the pre-104 week IRB. For a post-104 week IRB, the applicant must prove on a balance of probabilities that he has a complete inability to engage in any employment for which he is reasonably suited, based on his education, experience, or training.

35Based on the evidence before me, I am unable to determine if he has a complete inability to engage in any employment for which he is reasonably suited, based on his education, experience or training.

36The testimony of the applicant’s spouse is not sufficient to meet the applicant’s evidentiary burden. In the absence of evidence that establishes the applicant’s education, experience or training, or his post-accident limitations, I am unable to find that he has met his burden of proving entitlement to a post-104 week IRB.

37I therefore find the applicant is not entitled to a post-104 week IRB.

The applicant is not entitled to attendant care benefits (“ACB”)

38I find the applicant is not entitled to attendant care benefits for the period in dispute.

39Section 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 services provided by an aide or attendant. Section 3(7)(e) provides further guidance on when an expense is incurred: (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would 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. Further, s. 3(8) states that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit, the Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.

Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”). While s. 42(5) of the Schedule allows an insurer to pay for ACBs without having received a Form-1 from the insured person, that is the insurer’s choice.

40The totality of the applicant’s evidence on this topic is the testimony of his spouse. She testified she does everything for him. She is his primary caregiver. She cooks, cleans, bathes, dresses him, and essentially she cannot leave him alone as he exhibits toddler-like behaviour and can put himself in dangerous situations. She asserts the applicant is in need of attendant care. She testified she can no longer take care of him as the burden is great and she has their young son who she also needs to raise and take care of.

41The applicant has not submitted a Form-1 to the respondent. There is no evidence before me that the insurer waived the Form-1 requirement, therefore the applicant is already disentitled to ACB. Further, even if the respondent waived the Form-1 requirement, the applicant has not proven that any ACBs were incurred, nor has his spouse or anyone else proven they suffered an economic loss by providing attendant care services to the applicant. This is enough to decide that the applicant has not met his burden of proving entitlement to ACBs or that any were payable.

42However, for completeness, I note the respondent’s position that the applicant does not qualify for attendant care services for several reasons.

43First, the respondent relies on surveillance evidence which it says contradicts the applicant’s position. The surveillance shows the applicant driving the car with his family as passengers, regularly going to and from work at a food processing plant, attending family outings, picking up his son from school on his own, working out at a gym with his spouse and even attending open houses with the intention to purchase a house together. The applicant’s spouse testified that they did buy a house.

44The surveillance also shows, and the applicant’s spouse confirmed in her testimony, that they visited a building centre together to purchasing material to renovate their bathroom. She further testified that both she and the applicant were going to renovate the bathroom together. All of these activities contradict the applicant’s need for attendant care services as he appears quite functional in his daily activities.

45Further, upon reviewing the surveillance material, I put weight on the surveillance evidence. because the surveillance was conducted over years and shows the applicant going about daily activities and acting independently.

46It is the applicant’s burden to demonstrate entitlement to the benefits in dispute, and I find that the applicant has not met his burden of proving on a balance of probabilities that he is entitled to an ACB. Therefore, he is not entitled to the benefit.

The applicant is not entitled to the treatment plan for psychological services

47The applicant is not entitled to the treatment plan for psychological services.

48To 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.

49No submissions were made as to the reasonableness and necessity of the treatment plans in dispute and no medical evidence was submitted that would support the applicant’s entitlement.

50Therefore, I find on a balance of probabilities that the applicant has not met his evidentiary burden to establish entitlement to the disputed treatment plan.

Award

51The applicant is not entitled to an award.

52The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

53As the applicant has not established entitlement to any benefits and has not made submissions about the basis for his entitlement to an award, I find that he is not entitled to an award.

Interest

54Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

55As no benefits are payable, it follows that the applicant is not entitled to interest.

ORDER

56The applicant is not entitled to pre and post 104 week IRB.

57The applicant is not entitled to ACB.

58The applicant is not entitled to the treatment plan for psychological services.

59The applicant is not entitled to an award.

60The applicant is not entitled to interest.

61The application is dismissed.