DT v. Wawanesa Mutual Insurance Company, 2019 CanLII 110124

DT vs. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-005613/AABS

Citation: DT vs. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-005613/AABS

Date: October 2, 2019

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:

DT

Appellant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

COUNSEL FOR THE APPLICANT: Robert Seredynski

COUNSEL FOR THE RESPONDENT: Tessie Kalogeras

HEARD in Writing: April 1, 2019

REASONS FOR DECISION

OVERVIEW

1The applicant, DT, was involved in an automobile accident on December 9, 2013 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when the respondent, Wawanesa, denied her claims.

2Wawanesa has raised two preliminary issues that could prevent the Tribunal from hearing DT’s appeal of its decision to deny her claim for income replacement benefits, medical and rehabilitation benefits, costs of examination and an award under Regulation 664.

3First, Wawanesa submits that the claims in this appeal have already been determined by the Tribunal, barring DT’s appeal from proceeding.

4Second, Wawanesa asserts that DT is statute-barred from appealing its refusal to pay certain claimed benefits, including IRBs and seven claims for medical benefits and costs of examinations, because DT failed to commence her appeal within two years of the date that her claims were denied, as required by s. 56 of the Schedule.

5On January 14, 2019, the Tribunal issued an order that the preliminary issues be heard in advance of any hearing of the substantive issues in this matter. The Order also stipulated that if DT is successful in the preliminary issues proceeding, the Tribunal will schedule a case conference to determine how the substantive issues in dispute will proceed.

ISSUES

6The issues to be decided by the Tribunal is:

1. Is DT barred from proceeding with this appeal because the claims in dispute herein have already been adjudicated and decided?

2. Is DT barred from proceeding with this appeal under s.56 of the Schedule because she failed to commence it within two years after Wawanesa’s refusal to pay the benefits she claims?

RESULT

7DT’s appeal is barred because the claims in dispute have already been adjudicated and decided. DT’s appeal may not proceed.

8It is not necessary for me to determine the issue of a statute-bar under s.56.

9Costs are denied. DT’s award claim is extinguished by my decision to bar his appeal.

ANALYSIS

Does the Tribunal have the authority to determine “res judicata”?

10Res judicata is Latin for “the thing has been decided” and stands for the principle that once a claim or issue has been decided by a competent authority, such as the Tribunal, is cannot be re-heard, if it involves the same parties and the same subject matter.

11DT asserts that the Tribunal cannot bar her appeal on the basis that her claims have already been decided, because res judicata results in estoppel, and estoppel is an equitable remedy that administrative tribunals have no jurisdiction to impose. She relies on the Tribunal’s decision in J.T. and Aviva² in which DT says this was stated.³

12Wawanesa argues that J.T. and Aviva is distinguishable from this case and should not be applied to this case.

13I agree with Wawanesa. J.T. and Aviva dealt with an applicant’s claim that the insurer was estopped from discontinuing benefits payments after the Tribunal had determined that that the incident in which J.T. was injured was not an accident. I find this to be distinguishable from the instant case in several respects:

i. The estoppel sought by J.T. was an equitable remedy that would have effectively contradicted or negated a decision of the Tribunal that J.T. was unentitled to claimed benefits. The bar sought by Wawanesa would do no such thing: what is sought here is finality and closure in the absence of fresh new and previously unavailable evidence.

ii. It was not clear that J.T. and Aviva extends to res judicata. It is not clear to me that a decision to bar an appeal from proceeding because it has already been decided is in fact an “equitable remedy” at all.⁴ I find that res judicata bars the Tribunal from re-hearing previously decided issues, protecting the jurisdiction of the adjudicator(s) as well as the rights of all parties to certainty and finality in litigation.

iii. In J.T. and Aviva at paragraph 41, the Executive Chair noted the Tribunal’s latitude to control process and procedure and to make decisions about procedural fairness under the Statutory Powers and Procedure Act⁵. The case did not involve the application of res judicata. I find that in the case before me, applying the principles of res judicata is consistent with the latitude described in J.T. and Aviva. I agree with Wawanesa that allowing parties to relitigate issues that have already been determined would undermine the adjudicative and appeal system by removing the finality of decisions and orders.

iv. The Supreme Court, in a decision cited by DT, has stated that the rules cited by both parties on res judicata extend to decisions made by administrative officers and tribunals.⁶

14I also agree with Wawanesa that there are persuasive precedents for the consideration of res judicata by the Tribunal. These include 17-006816 v Cooperators, 2018 CanLII 110950 and 16-003909 v Aviva Insurance Canada, 2017 CanLII 59502 in which the principles of res judicata were considered and applied.

15The Tribunal has jurisdiction to apply the principles of res judicata to the current appeal and I will proceed to do so.

Have DT’s claims already been determined by adjudication?

16It is uncontested that DT has filed two applications with the Tribunal. The first application was dated May 13, 2016 and I will call it the “first appeal”. The second application is dated June 18, 2018, which I will call the “current appeal”.

17The substantive issues in each appeal were/are:

1st Appeal – May 13, 2016

Current Appeal – June 18, 2018

IRB: $70/week, 07/14/14 to 05/13/16

IRB: $70/week, 07/14/14 to 05/13/16

Medical Benefits (Chiropractic)

• $125.12 – Dr. Weinberg, DC
• $1,870.56 -- Dr. Weinberg, DC
• $2,612.14 -- Dr. Weinberg, DC
• $2,612.14 -- Dr. Starcevic, DC
• $2,095.28 -- A. Bierbrier, OT

Medical Benefits (Chiropractic)

• $125.12 – Dr. Weinberg, DC
• $1,870.56 -- Dr. Weinberg, DC
• $2 ,612.14 -- Dr. Weinberg, DC
• $2,612 .14 -- Dr. Starcevic, DC

Costs of Examination

• $1,397.00 – A. Bierbrier, OT

Cost of Examination $1,397.00 – A. Bierbrier, OT

Other

• $192.10 back brace

Additional Medical Benefits (2nd application only)

• $2,267.00 -- Dr. Nik, DC
• $9,915.80 -- Dr. Goldhawk, DC
• $1,980.10 -- Dr. Goldhawk, DC
• $1,175.62 -- Dr. Starcevic, DC $2,412.14 -- Dr. Starcevic, DC

Additional Costs of Examination

• $2,200.00 -- Dr. Goldhawk, DC
• $2,200.00 -- Dr. Goldhawk, DC

Other: $192.10 back brace

18DT’s first appeal was heard on October 19, 2016 and November 8, 2016. The Tribunal issued its decision on April 24, 2017.⁷ The Tribunal’s decision was upheld in a reconsideration decision issued September 22, 2017. Finally, the Divisional Court issued a decision on the issues in the first appeal on March 16, 2018.⁸

19The end result of these proceedings were:

i. DT was found not entitled to IRBs: she did not satisfy the prescribed test for IRBs.

ii. DT’s injuries were found to be “minor” as defined by s.3 of the Schedule. This means that her entitlement to medical benefits and CoEs is capped at $3,500 by the Minor Injury Guideline⁹ (MIG).

20I find that DT’s claims in the current appeal have already been decided and are subject to the principle of res judicata:

i. The specific issues common to both appeals have been decided, and the decisions are final as all appeal routes have been exhausted.

ii. The MIG determination¹⁰ on the first appeal make DT’s current appeal on additional medical and rehabilitation benefits and CoEs unsupportable because the amounts exceed the $3,500 limit on benefits payable to her.

Are there grounds to waive res judicata in this case?

21The parties agree with Wawanesa that an appeal of previously adjudicated claims may proceed if certain conditions are met:

i. fresh, new evidence is submitted that was previously unavailable, [emphasis mine] and

ii. that new evidence would conclusively impeach¹¹ the original results.¹²

22I agree with Wawanesa that the MIG determination found and upheld on the first appeal governs any subsequent claims for medical and rehabilitation benefits, and CoEs, unless evidence meeting the criteria described in the previous paragraph is submitted.

23I find nothing in DT’s submissions that would persuade me that, absent fresh new evidence, the Tribunal should hear this appeal.

24I agree with DT that a MIG determination is not static: it may be reassessed if and as accident-related injuries manifest themselves over time,¹³ even after an appeal decision has been made. However, I find that changes arising from medical deterioration would necessarily have to be proven with fresh new evidence unavailable at the first hearing. This reasoning applies also to any medical deterioration that would make DT eligible for IRBs: reassessment and re-litigation are contingent on fresh new evidence of a change of medical condition.

Has DT submitted fresh new evidence sufficient to re-open her appeal?

25DT asserts that she has submitted fresh new evidence – evidence unavailable for the original hearing¹⁴ -- in the form of:

i. A chronic pain report by Dr. Mary-Ann Goldhawk, chiropractor, dated December 12, 2016; and

ii. A MIG evaluation report by Dr. Ken T. Fern, orthopedic surgeon, dated April 23, 2018.

26DT submits that this evidence would conclusively impeach the determination reached by the Tribunal in the first hearing, on both the MIG determination and the IRB claim.

27In reply to DT’s assertion and evidence of reports from Dr. Goldhawk and Dr. Fern, Wawanesa asserts: “Both of these experts concluded that the Applicant has right shoulder, neck and back pain complaints that are chronic: This is not "fresh, new evidence", as these are the exact same injuries and expert conclusions regarding chronic pain that were before the Tribunal previously, and on Appeal before the Executive Chair and Divisional Court. There is no new evidence to support that the Applicant's condition has declined since the accident or that additional injuries or conditions exist.”

28DT’s submissions does not provide any explanation or analysis of how the reports of Dr. Goldhawk and Dr. Fern differed from the expert evidence she submitted for the first hearing. She does not expressly claim in submissions that her medical condition has deteriorated or that new medical issues have arisen since the first hearing. She simply states that the reports are the fresh, new and previously unavailable evidence needed to proceed with the current appeal.

29My review of Dr. Goldhawk’s chronic pain report revealed no indication of ongoing deterioration or change in DT’s documented medical condition from the time of the first hearing, or a contrast with conditions noted in the prior medical documentation, which the report notes was reviewed by Dr. Goldhawk.

30My review of Dr. Fern’s report revealed that the most recent previous objective medical evidence reviewed was dated 2015, which means it was available for DT’s first appeal. He disagrees with an IE report by Dr. P. Tansey, orthopedic surgeon, dated June 8, 2016, who opined that DT’s injuries are minor. Dr. Fern’s report does not provide any indication of ongoing deterioration or change in DT’s documented from the time of the first hearing, nor does it purport to diverge from the description of injury in Dr. Tansey’s report. I am unable to find that Dr. Fern’s report is the fresh, new and previously unavailable evidence required to waive the res judicata principle.

31I considered whether Dr. Fern’s opinion constituted previously unavailable evidence and decided that it did not because I find that a medical assessment and opinion is not “unavailable” simply because it was not obtained before a hearing is conducted. I find that “unavailable” in the context of applying res judicata means that the evidence could not have been obtained, not that it simply was not obtained. In this case, I find that Dr. Fern’s evidence was “available evidence” because:

i. DT was demonstrably capable of obtaining medical assessments and reports when she filed her first appeal.

ii. The court ruled that the evidence in the first hearing “shows that [Wawanesa] had refused [DT] payment above the MIG guidelines and she therefore should have been aware that this was an issue.”¹⁵

iii. There is no evidence that Dr. Fern’s opinions are based on medical information that was not available or any condition that did not exist at the time the first appeal was heard. Dr. Tansey’s IE report was available months before the hearing commenced, which provided DT the opportunity to address it.

32As a result of the foregoing findings, I have determined that DT has not submitted fresh, new and previously unavailable evidence that would warrant waiving the res judicata principle.

Were the issues in the current appeal previously decided?

33In addition to the “fresh new and previously unavailable evidence” criterion, the parties agree that to be precluded from re-litigation, issues in the first hearing must have been heard on their merits and the prior decision must have been a final judgment.¹⁶

34DT argues that her claims for medical benefits and costs of examination were never determined by the Tribunal or the Divisional Court because of the MIG determination. In DT’s view, whether her claims for medical benefits and CoEs are reasonable and necessary was never decided, in her words these issues were “left open”, because the Tribunal did not consider the merits of each of the disputed treatment and assessment plans once the MIG determination is made. DT argues that this is not a “final decision”.

35DT also argues that her claim for IRBs has not been determined because she has changed the time period for which she claims eligibility for IRBs.

36I disagree with DT’s reasoning on both points.

37First, with respect to medical benefits and CoEs, my reading of the decision rendered after the first hearing is that the Tribunal found that DT’s injuries fall within the MIG, and in doing so considered the merits of evidence and arguments submitted by the parties. The MIG issue was decided on its merits with detailed reasons. A MIG determination effectively determines entitlement to any medical benefits and to any CoEs above the prescribed $3,500 funding limit, because there is no way an insurer can be found liable to pay medical benefits and CoEs above this amount so long as the MIG determination stands. The Tribunal did not assess the specific, disputed treatment and assessment plans (and typically does not do so) for this reason. In my view, DT’s entitlement to the disputed medical benefits and CoEs have been effectively determined, and there is no basis on which to re-litigate them unless and until fresh new and previously unavailable evidence impeaches the standing MIG determination itself.

38Second, with respect to IRBs, I am not persuaded that simply changing the end date of the claimed eligibility period creates a new issue for litigation. Sections 5-6 of the Schedule prescribe two sets of clear criteria, both based on functional ability for IRB eligibility, one covering the period during the first 104 weeks after the accident and the other covering the period beyond 104 weeks after the accident. In 2017 after the first hearing, the Tribunal determined that DT did not meet either of the prescribed tests for IRB eligibility and gave detailed reasons. I find that the disputed IRBs have been determined, and there is no basis on which to re-litigate them unless and until fresh new and previously unavailable evidence impeaches the standing IRB determination.

39I find both the MIG and IRB decisions to be final because they were appealed and upheld in Divisional Court.

40As I have determined that DT’s appeal has already been decided, it is unnecessary for me to determine whether any of the claims within her current appeal are statute-barred under s.56 of the Schedule.

AWARD

41Section 10 of Regulation 664¹⁷ permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.

42An award claim was not part of DT’s first appeal. It is therefore not covered by my findings precluding a re-hearing of issues already decided.

43Neither party addressed the award issue in submissions for this preliminary issue hearing.

44In my opinion, since any award is linked to the amount owing to an applicant, the award issue is extinguished by my decision to bar DT’s appeal. The insurer cannot have unreasonably withheld payments to which DT is not entitled.

COSTS

45Rule 19.1¹⁸ permits a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”. Rule 19.6 imposes a $1,000.00 cap on cost awards, for each full day of attendance at a motion, case conference or hearing.

46Wawanesa’s and DT’s submissions both ask for costs but neither provide any evidence of the type of conduct contemplated by Rule 19.1. The cost request is accordingly dismissed.

CONCLUSION

47DT’s appeal is barred because the claims in dispute have already been adjudicated and decided. DT’s appeal may not proceed.

48It is not necessary for me to determine the issue of a statute-bar under s.56.

49Costs are denied. DT’s award claim is extinguished by my Decision to bar his appeal.

Released: October 2, 2019

___________________________

Christopher A. Ferguson

Adjudicator

Footnotes

1. 1O.Reg. 34/10.
2. 2J.T. and Aviva Canada Inc. 2018 CanLII 8097 (ON LAT), a reconsideration decision that is binding on me.
3. 3Ibid., paragraphs 39-43
4. 4Nor is it “estoppel”.
5. 5R.S.O. 1990, Chapter S.22
6. 6Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, 2991 at paragraph 21.
7. 7The Tribunal’s file number is 16-000266.
8. 8T v. Wawanesa Mutual Insurance Company, 2018 ONSC 1581
9. 9Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
10. 10“MIG determination” is the finding that DT’s injuries are minor and covered by the MIG, including the limit on medical benefits and CoEs. Wawanesa argues that if the benefits are not payable because of the MIG limit, they should not be adjudicated.
11. 11“Impeach” in this context means to call into question the integrity or validity of a decision, without necessarily implying that the decision impeached was unfair or wrong at the time it was made..
12. 12Toronto (City) v. CUPE Local 79, 2003 SCC 63, para. 52, cited in 17-006816 v Cooperators, 2018 CanLII 110950 led by Wawanesa.
13. 13HL v Co-operators General Insurance Company, 2017 Canlll 81577 (ON LAT) at page 4, para 18, led by DT.
14. 14The first hearing was held on October 19, 2016 and November 8, 2016.
15. 15T v. Wawanesa Mutual Insurance Company, 2018 ONSC 1581, at paragraphs 17-18
16. 16Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, 2991 led by DT and cited by the Tribunal in 16-003909 v. Aviva Insurance Canada, 2017 CanLII 59502, para. 15, cited by Wawanesa.
17. 17i.e. s.10, Regulation 664, R.R.O. 1990, Insurance Act
18. 18All references to a “Rule” are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (October 2, 2017)