Citation: Sree Krishnan v. Unifund Assurance Company, 2024 ONLAT 22-004036/AABS

Licence Appeal Tribunal File Number: 22-004036/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:

Saraswathy Sree Krishnan

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Christopher Evans

APPEARANCES:

For the Applicant:

Arvin Gupta, Counsel

For the Respondent:

Marina Linkletter, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Saraswathy Sree Krishnan, the applicant, was involved in an automobile 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”). She was denied benefits by Unifund Assurance Company, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

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 Minor Injury Guideline limit?

2. Is the applicant entitled to $4,115.00 for chiropractic services, proposed by Reddy's Physio Rehab Inc. in a treatment plan/OCF-18 dated November 25, 2021?

RESULT

3The applicant has not established that she sustained a non-minor injury. She has therefore not established that she is entitled to more than $3,500 in medical and rehabilitation benefits.

4The applicant is not entitled to benefits for the chiropractic services in dispute.

ANALYSIS

The applicant has not established that she sustained a non-minor injury

5Section 18(1) of the Schedule provides that an insured person who sustains an impairment that is predominantly a minor injury is limited to $3,500 in medical and rehabilitation benefits. A minor injury is defined at s. 3 of the Schedule 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. Minor injuries are subject to the treatment framework in the Minor Injury Guideline.

6The onus is on the applicant to prove that she sustained a non-minor injury: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.

7The applicant submits that she sustained a non-minor injury because:

1. She was diagnosed with tennis elbow and neck and shoulder strains;

2. She has had ongoing pain since the accident; and

3. An x-ray of her cervical spine on January 11, 2023 identified “mild facet arthropathy from L3-4 to L5-S1 and [m]arginal lipping along the lumbar vertebra.”

8The respondent submits that the applicant sustained a predominantly minor injury because:

1. The accident did not cause her tennis elbow;

2. She missed only one day of work after the accident, worked full-time on normal duties until August 2021, then stopped working due to an issue unrelated to the accident; and

3. Dr. Charanjit Sandhu, an insurer’s assessor, concluded that her injuries were sprains of the cervical spine, right shoulder, right elbow, and lumbar spine.

9I find that the applicant has not established that she sustained a non-minor injury in the accident for the following reasons:

1. The accident did not cause the applicant’s tennis elbow, which had been diagnosed 12 days earlier on July 4, 2020. She has not referred me to any evidence showing that her tennis elbow was affected by the accident and does not claim that it is a pre-existing medical condition within the meaning of s. 18(2) of the Schedule.

2. Strains and sprains are minor injuries as defined in the Schedule.

3. The January 11, 2023 x-ray does not establish that the applicant sustained a non-minor injury in the accident. The document cited in her submissions is mostly illegible, but it appears to concern her right elbow rather than her spine. In any event, she has not referred me to any evidence that ties the issues identified in the x-ray to the accident.

4. For the applicant’s pain to qualify as a non-minor injury, she must prove that she suffers from chronic pain syndrome or pain that is continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability: 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para 28. The applicant does not claim that she suffers from chronic pain syndrome and has not referred me to any evidence showing that her pain causes functional impairment or disability.

5. I note that in the passage of Dr. Sandhu’s report cited by the respondent, the applicant said she left her job in August 2021 due to right shoulder and right elbow pain from the accident. I place little weight on that statement for the following reasons:

i I have not been referred to any evidence that corroborates it;

ii The applicant’s tennis elbow was not caused by the accident;

iii The applicant also told Dr. Sandhu that she had no ongoing right elbow pain at the time of the accident. She clearly did, however, as she had visited a doctor complaining of elbow pain only 12 days before and was diagnosed with severe tennis elbow; and

iv The applicant made the statement one year after she left her job and to an insurer’s examiner in the context of a dispute over her entitlement to accident benefits.

10I conclude that the applicant has not established that she sustained a non-minor injury. She has therefore not established that she is entitled to more than $3,500 in medical and rehabilitation benefits.

The applicant is not entitled to benefits for the chiropractic services in dispute

11According to the Case Conference Report and Order, there remained $89.05 in benefits under the $3,500 limit as of January 24, 2023. As the applicant has essentially exhausted the benefits available to her, she is not entitled to benefits for the chiropractic services in dispute. In any event, she has not established that the proposed services are reasonable and necessary as s. 15 of the Schedule requires. She argues that Dr. Sandhu’s findings should not be accepted, but refuting those findings does not help her meet her burden of proof. She argues that she has made numerous complaints of elbow, shoulder, and neck pain to her treatment providers since the accident. It does not necessarily follow, however, that the proposed chiropractic services are an appropriate treatment for those complaints.

The applicant’s attempts to obtain her medical records

12In her submissions, the applicant documents her efforts to obtain her medical records from third parties and states that she did not receive many of them. She submits that she has attempted to produce compelling evidence that her injuries cannot be treated within the Minor Injury Guideline. I understand her frustration, but I can only base my decision on the evidence before me. I cannot assume that had she been able to file the missing records, they would show that she sustained a non-minor injury and that she would be entitled to the chiropractic services in dispute.

The respondent is not entitled to costs

13The respondent argues that it is entitled to costs because the application is unreasonable and frivolous given its clear lack of evidentiary support.

14Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 provides that costs may be awarded against a party that has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 provides that the Tribunal must consider all relevant factors, including the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties, and the potential impact an order for costs would have on individuals accessing the Tribunal system.

15I decline to award costs to the respondent. The fact that the evidence does not meet the applicant’s burden of proof does not imply that bringing the application was unreasonable or frivolous.

ORDER

16The applicant has not established that she sustained a non-minor injury. She has therefore not established that she is entitled to more than $3,500 in medical and rehabilitation benefits.

17The applicant is not entitled to benefits for the chiropractic services in dispute.

18The application is dismissed without costs.