Citation: Venugopal v. Unifund Assurance Company, 2024 ONLAT 22-004279/AABS

Licence Appeal Tribunal File Number: 22-004279/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:

Sree Krishnan Gopala Venugopal

Applicant

and

Unifund Assurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Arvin Gupta, Counsel

For the Respondent: Marina Linkletter, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Sree Krishnan Gopala Venugopal (the “applicant”) was involved in a motor vehicle accident on July 16, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Unifund Assurance Company (the “respondent”) held the applicant within the Minor Injury Guideline (“MIG”) and denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following substantive issues are in dispute:

1. 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 of the MIG?
2. Is the applicant entitled to $5,194.38 for chiropractic services ($5,420.00 less $225.62 approved), proposed by Reddy’s Physio Rehab Inc. in a treatment plan/OCF-18 dated December 3, 2020?
3. Is the applicant liable to pay costs to the respondent?

3In the Case Conference Report and Order (“CCRO”) dated February 24, 2023 that set this matter down for a written hearing, it is noted that the parties agree that $3,255.81 has been paid in benefits. This leaves $244.19 remaining within the $3,500.00 MIG limit.

4This amount is insufficient to account for the remaining amount of the treatment plan in dispute. As a result, the applicant’s entitlement to this remainder is dependent on a finding that the applicant be removed from the MIG.

5In submissions, the respondent added the above request for costs. As Rule 19.2 of this Tribunal’s Rules allows a party to make a request for costs in writing or orally at a case conference or hearing at any time before a decision or order is released, I have added it to the list of items in dispute.

RESULT

6I find that:

i. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.

ii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

iii. The applicant is not liable to pay costs to the respondent.

ANALYSIS

The Minor Injury Guideline (“MIG”)

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

8An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

9The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG. In this instance, the applicant argues that he suffers from lower back and left/right shoulder pain complaints since the accident that have resulted in an ongoing chronic pain problem with potential disc herniation in the lower back.

10The respondent counters that the applicant has failed to produce any compelling evidence that would reasonably challenge the MIG determination. It maintains that the applicant’s accident-related injuries fall within the definition of a minor injury in the Schedule.

The applicant remains within the MIG

11I find that the applicant has not demonstrated that his accident-related injuries warrant removal from the MIG.

12The applicant submits minimal evidence that he suffers from chronic pain or any other injury or impairment that supports his argument that he should be removed from the MIG. Much of the applicant’s written submissions detail a chronology of his application before the Tribunal, not medical evidence relevant to the MIG determination. All that he produces to support his claims of chronic pain are:

i. The self-reported motor vehicle accident report.

ii. An OHIP summary showing five visits to family physician Dr. Yasodhara Tharmaratnam.

iii. Handwritten records from Reddy’s Physio Rehab Inc. that are virtually impossible to decipher.

iv. The OCF-18 in dispute.

v. An x-ray report dated August 18, 2020, that notes only a slight narrowing at L5-S1 and minimal degenerative changes in the lower spine, apparently unrelated to the accident.

vi. Four requests sent to the office of Dr. Tharmaratnam for clinical notes and records (“CNRs”) that were apparently never provided to the applicant and are not included with submissions.

13Chronic pain is not suspected or diagnosed in the above documents adduced by the applicant. Much of the applicant’s argument is reliant on the Reddy’s Physio Rehab records. However, and as noted above, these records are hand-written and almost entirely illegible, save for a few assessment reports that detail the applicant’s complaints on a number of occasions of low back pain and shoulder pain aggravated by certain movements. This, by itself, is not enough to establish that the applicant suffered from chronic pain with a functional impairment as a result of the accident.

14Also, although I accept the applicant’s contention that he tried to secure the CNRs of Dr. Tharmaratnam on multiple occasions over the course of 2022 and 2023, that he was unsuccessful in doing so is more impactful to the issues before me than these unsuccessful attempts. His claims of seeking treatment with Dr. Tharmaratnam for accident-related injuries that included the development of chronic pain are of negligible value without CNRs to support these assertions.

15Lastly, the remainder of the applicant’s argument in submissions (detailed in a section ostensibly about the treatment plan in dispute, but also applicable to the MIG determination) involves a critique of the insurer’s examination (“IE”) report completed by Dr. Mohamed Lamine, general practitioner, and dated August 9, 2022. This, in my view, amounts to an attempt to reverse the onus onto the respondent, and is of no value here.

16In addition, I assign significant weight to the report of Dr. Lamine as it is thorough and stands unchallenged by medical evidence adduced by the applicant. The physician wrote that he found no objective evidence of an accident-related musculoskeletal or potential neurological impairment and that the applicant displayed full ranges of motion during an in-person physical examination, with the exception of some pain-limited forward bending. Dr. Lamine concluded that the applicant’s accident-related injuries were minor as defined in the Schedule.

17Aside from chronic pain, the applicant makes no claims to suffer from any other accident-related injury or impairment that would warrant removal from the MIG.

18Accordingly, and for the above reasons, the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment.

The Treatment Plan

19As I have found the applicant to remain within the MIG, it is not required to review the treatment plan in dispute to determine if it is reasonable and necessary.

20However, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

Costs

21I find that the applicant is not liable to pay costs to the respondent.

22Costs are a discretionary remedy that the Tribunal may impose when it is determined that a party has acted unreasonably, frivolously, vexatiously, or in bad faith, pursuant to Rule 19.1 of this Tribunal’s Rules and s. 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”).

23The respondent submits that the applicant’s “clear lack of evidentiary support for his position amounts to an unreasonable and frivolous claim.”

24I do not agree. While I concur with the respondent’s position that the applicant has not provided evidentiary support for his claims in this application, and have detailed my reasons for this opinion above, in my view this is not sufficient to meet the standard for costs as established in Rule 19. In this matter, the applicant simply did not meet his burden. That alone is not evidence of any sort of untoward conduct that would support awarding costs to the respondent.

25Further, the respondent’s submissions do not meet the criteria as set forth in Rule 19.4, in that they do not set out the applicant’s specific conduct alleged to be unreasonable, frivolous, vexatious, or in bad faith. Again, pointing out weaknesses in the applicant’s submissions does not meet the high bar for costs.

26In addition, the respondent did not set out the amount of costs being sought, as required by Rule 19.3.

27As a result, the applicant is not liable to pay costs to the respondent.

ORDER

28I find that:

i. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.

ii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

iii. The applicant is not liable to pay costs to the respondent.

iv. The application is dismissed.