Citation: Namasivayam vs. Aviva Insurance Company, 2020 ONLAT 19-010862

Released Date: 12/18/2020

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:

Revathy Namasivayam

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Rajwant Singh Bamel

Counsel

For the Respondent:

Rosalind Eastmond

Counsel

HEARD

By Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1Revathy Namasivayam (“applicant”) was involved in a motor vehicle accident on July 29, 2017 (“accident”). The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2The applicant was denied certain benefits by Aviva Insurance Company (“respondent”) and submitted two separate applications to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

3In Tribunal file 18-012404 (the “first application”) the applicant claimed various medical and rehabilitation benefits which the respondent had denied, an award and interest. The respondent determined that the applicant’s injuries were predominantly minor and therefore subject to treatment within the Minor Injury Guideline (“MIG”), the limit for which had been exhausted. The first application was resolved by the Tribunal’s decision dated January 24, 2020 of Adjudicator J.A. Boyce (“first decision”) in which it was found that the applicant sustained predominantly minor physical injuries treatable within the MIG, that the applicant did not demonstrate that she sustained psychological impairments as a result of the accident or suffered from pre-existing impairments that would remove her from the MIG. In the first decision it was also found that, as the MIG limits have been exhausted, the applicant was not entitled to payment of any of the treatment plans in dispute.

4In Tribunal file 19-010862 (the “second application”) the applicant claimed non-earner benefits (“NEB”), various medical and rehabilitation benefits which the respondent had denied, an award and interest. The respondent took the position that the first decision had determined the issue of whether the applicant’s injuries were within the MIG and as a result the applicant’s second application was res judicata and denied NEB and the three treatment plans in dispute.

5At the case conference for the second application the Tribunal ordered, on consent of both parties, that the following preliminary and substantive issues would be determined at this hearing.

ISSUES

6The issues to be decided in this hearing are:

Preliminary Issue:

a. Is the applicant’s claim subject to res judicata, and is she precluded from further advancing the issue of whether she sustained predominantly minor injuries as defined in the Schedule, as per the Tribunal’s first decision?

Substantive Issues:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to receive NEB in the amount of $185.00 weekly for the period of August 26, 2017 to date and ongoing, submitted August 17, 2017, and denied by the respondent on September 26, 2017?

iii. Is the applicant entitled to receive medical benefits in the amount of $2,000.00 for psychological services recommended by Downsview Healthcare Inc. in a treatment plan submitted March 12, 2019 and denied by the respondent on March 15, 2019?

iv. Is the applicant entitled to receive cost of examination in the amount of $200.00 for an assessment recommended by Downsview Healthcare Inc. submitted February 28, 2019, and denied by the respondent on March 12, 2019?

v. Is the applicant entitled to receive cost of examination in the amount of $200.00 for psychological screening recommended by Downsview Healthcare Inc. submitted February 28, 2019, and denied by the respondent on March 12, 2019?

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

vii. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payment of a benefit?

RESULT

7The preliminary issue of whether the applicant sustained predominantly minor injuries was determined by the Tribunal’s first decision and is res judicata. As a result, substantive issue i will not be determined by me.

8The applicant is not entitled to payment for any of the treatment plans described in substantive issues iii, iv and v given that the Tribunal found in the first decision that the applicant’s injuries are within the MIG and the MIG limits have been exhausted. As a result, it is unnecessary for me to consider the reasonableness and necessity of these disputed treatment plans. The applicant has not proven her entitlement to NEB claimed in substantive issue ii. There is no interest. There is no award. I decline to add costs as an issue or to determine it.

LAW

9Res judicata is Latin for “the thing has been decided”. It is the legal doctrine that if a claim or part of a claim has been decided by an authority having jurisdiction over the matter, such as the Tribunal, it cannot be re-heard providing it involves the same parties, the same subject matter, the prior adjudication was on the merits and the prior decision is a final judgment.²

10Section 12 of the Schedule requires an insurer to pay a NEB to an insured person who does not qualify for an income replacement benefit and who suffers from “a complete inability to carry on a normal life” as the result of an impairment sustained in an accident. The impairment must arise within 104 weeks after the accident.

11Section 3(7)(a) further provides that a person suffers a “complete inability to carry on a normal life” if that person suffers an impairment as a result of the accident that continuously prevents him or her from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

12The onus is on the applicant to prove that he or she suffers from a complete inability to carry on a normal life. This standard has often been cited as being one of the most difficult thresholds to meet under the Schedule.

13The Ontario Court of Appeal³ set out the approach to determining whether an insured has satisfied the s. 3(7) test:

• There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.

• The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period of time prior to the accident. The duration will depend on the facts of the case.

• All of the applicant’s pre-accident activities must be considered but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.

• The applicant must prove that his/her accident related injuries continuously prevent him/her from engaging in substantially of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.

• “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging” in the activity.

• If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities.

ANALYSIS

Is the MIG issue res judicata?

14I find that the preliminary issue of whether the applicant’s injuries are within the MIG was determined by the Tribunal’s first decision and is res judicata for the following reasons.

15In the first decision, the Tribunal found that the applicant sustained predominantly minor physical injuries treatable within the MIG, that the applicant did not demonstrate that she sustained psychological impairments as a result of the accident or suffered from pre-existing impairments that would remove her from the MIG. It was also found that, as the MIG limits have been exhausted, the applicant is not entitled to payment of any of the treatment plans in dispute.

16The MIG finding was within the jurisdiction of the Tribunal. The parties in the first application and second application are the same. The subject matter is the same in the first application and the second application, specifically the nature and extent of the applicant’s injuries from the same accident. The first decision resulted from an adjudication on the merits and after the applicant and the respondent had full opportunity to make submissions and put forward evidence on the MIG issue. The first decision was a final judgment because it finally determined the MIG issue between the parties following a hearing. There is no evidence before me that the first decision is the subject matter of reconsideration or an appeal.

17I find unpersuasive the applicant’s argument that I must not consider just the first decision but also the “reasoning behind the decision, which will aid this tribunal in understanding that the first decision was unreasonable and in light of cumulative evidence, the applicant deserves to receive treatment outside of the constraints…” of the MIG.⁴ The hearing of this second application is not a reconsideration or judicial review of the first decision. It is clear from the first decision that the Tribunal held a full and fair hearing on the merits with respect to the MIG issue.

18I also find unpersuasive the applicant’s attempt in her submissions to re-argue the MIG issue determined in the first decision. Almost all of the evidence put forward by the applicant in this second application in support of her argument that her injuries from the accident are not predominantly minor either were before the Tribunal at the first hearing or were available to be put before the Tribunal in the first hearing and do not constitute fresh, new evidence that would conclusively impeach the original results.⁵ For example, Dr. Lee’s August 3, 2017 disability certificate is considered in paragraph five of the first decision. Dr. Shaul and Helen Ilio’s April , 2019 report which is later than Dr. Shaul’s February 15, 2018 report is considered in paragraph 14 of the first decision. The records of Trillium Health Partner and Dr. Dhillon’s May, 2018 report were available to be put in evidence prior to the start of the first hearing on October 14, 2019.

19Dr. Sothilingam’s records were available to be put in evidence prior to the start of the first hearing except for his January 13 and 23, 2020 records in which Dr. Sothilingam notes the applicant’s anxiety and that he counseled her for anxiety. It is clear from the first decision that the Tribunal was well aware of the psychological injury argument being made by the applicant and found it unpersuasive. In my view the January, 2020 records of Dr. Sothilingam do not decisively impeach the conclusion on alleged psychological injury in the first decision and do not show a material change in circumstances.

20The applicant argues her pharmacy records “…were not available at the time of the first hearing…” The pharmacy records show that they were not printed out until January 28, 2020, after the first decision was made on January 24, 2020. However, the entries are from 2016 to September, 2019. These records were in existence prior to the first decision being made and available to be filed at the first hearing had the applicant chosen to do so.

21As a result, I find that the doctrine of res judicata applies and that the applicant’s second application cannot proceed on the MIG issue.

22I accept the applicant’s submission that the denial of NEB was not a part of the first decision. In the first application, the applicant did not claim NEB and it was not before the Tribunal at the time of the first decision. The applicant’s entitlement to NEB was not determined by the Tribunal’s first decision. Therefore, this issue is not res judicata and I will determine it.

Is the Applicant Entitled to NEB?

23The applicant submits that she meets the test for a NEB as she suffers from a complete inability to carry on a normal life as a result of the accident. The applicant submits that her housekeeping, home maintenance and primary caregiving activities were the most important to her and that these were severely affected as a result of the accident. The applicant relies on various medical records and reports including the April 6, 2019 report of Dr. Shaul and Helen Ilio, the applicant’s psychologist, and the OCF-3, disability certificate by Dr. Le, applicant’s chiropractor, dated August 3, 2017.

24Applying the above principles and based on the totality of the evidence, I find that the applicant is not entitled to a NEB non-earner benefit for the period in dispute for the following reasons.

25The applicant told Dr. Shaul and Helen Ilio that before the accident she had a great deal of energy and was generally able to engage in activities with no difficulties but that post-accident her energy level has decreased considerably, she tires easily, “everything” now requires a lot of effort and she “…sees herself as unable to do many of the things that she used to” and that pain limits her ability to lift, bend and sit. The applicant also self-reported that these limitations affect her ability to perform many of her household chores and she experiences difficulty with chores such as cleaning the bathtub, cooking, vacuuming the floor and grocery shopping. The applicant also self-reported that she “struggles with shoveling snow” and “experiences difficulty bathing her children” and socializes less. This self-reporting does not support the applicant’s submission that she suffers from a complete inability to carry on a normal life as a result of the accident but to the contrary, tends to indicate that she is partially able to undertake her pre-accident activities, with some limitations, and does not establish a complete inability to carry on a normal life. The applicant self-reported very few activities that she can no longer do at all post-accident. Despite this, Dr. Shaul opines that the applicant suffers a complete inability to carry on a normal life as a result of the subject accident. I find the opinion of Dr. Shaul to be unsupported by the applicant’s self-reporting to him and/or Ms. Ilio, to be contrary to the applicant’s self-reporting to the respondent’s assessors and unsupported by any other significant medical evidence put forward by the applicant. For these reasons, I attribute little weight to Dr. Shaul’s opinions.

26Although Dr. Le indicates in the August, 2017 disability certificate that the applicant suffers a complete inability to carry on a normal life based on physical injuries which were found in the first decision, to be predominantly minor injuries and within the MIG, Dr. Le as a chiropractor cannot medically diagnose. Further, the only explanation given for the complete inability to carry on a normal life based on physical injuries from the accident is “Pain and difficulty with ADL’s” Given the lack of detail and explanation in this disability certificate I give this disability certificate little weight and I find it does not establish that the applicant suffers a complete inability to carry on a normal life.

27I prefer the opinion of Dr. Hosseini, the respondent’s physiatrist, who assessed the applicant in April, 2018, some nine months post-accident. Dr. Hosseini found that from a musculoskeletal perspective, the applicant did not suffer a complete inability to carry on a normal life as a result of the accident. Dr. Hosseini reported that the applicant indicated she was independent in completing all of her personal care tasks, had resumed some of her pre-accident housekeeping responsibilities and was driving, cooking and doing the laundry. During the assessment the applicant was observed transferring from sitting to standing without difficulty. The ability to do all of these activities is inconsistent with the applicant’s submission that she is completely unable to carry on a normal life as a result of the accident.

28Dr. Hosseini’s opinion is supported by the February 2 and 26, 2018 reports of the respondent’s psychiatrist, Dr. Sivasubramaniam, who also found the applicant did not meet the test for entitlement to NEB. Dr. Sivasubramaniam opined that the applicant did not meet the diagnostic criteria for any psychiatric disorder or condition. In the February 2, 2018 report, Dr. Sivasubramaniam reported that the applicant had resumed many of her housekeeping tasks including cleaning the kitchen and doing laundry, was independent in her personal care tasks, was able to dress and bathe her four year old child, drove her children to and from school and drove to visit her sister without significant difficulty, attended Temple and socialized with friends. Again, the ability to do all of these activities is inconsistent with the applicant’s submission that she is completely unable to carry on a normal life as a result of the accident.

29The applicant has put forward no significant reliable medical evidence that she is prevented from carrying on a normal life as a result of any injuries from the accident. This is the applicant’s burden.

30Having reviewed all of the evidence and based on the totality of the evidence, I find that the applicant has not discharged her burden to establish that she suffers from a complete inability to carry on a normal life as a result of the accident and as a result is not entitled to NEB for the period claimed.

Is the Applicant Entitled to the Disputed Treatment Plans Described in Substantive Issues iii, iv and v?

31I find that the applicant is not entitled to payment for any of the treatment plans in dispute in this hearing described in substantive issues iii, iv and v given that the Tribunal found in the first decision that the applicant’s injuries are within the MIG and the MIG limits have been exhausted. As a result, it is unnecessary for me to consider the reasonableness and necessity of these disputed treatment plans.

Interest

32Interest is not payable as no payments are overdue.

Award

33Section 10 of Regulation 664, R.R.O. 1990, Insurance Act, provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. There was no payment unreasonably withheld or delayed. The respondent was entitled to deny the NEB for the reasons it expressed which is not an unreasonable position given the evidence. For these reasons, there is no award.

Costs Requested by Both Parties

34The applicant and the respondent both requests costs. The applicant argues that the respondent has acted unreasonably, frivolously, vexatiously or in bad faith because the applicant was put to a substantial workload to advance her claims, the failure to award costs against the respondent would set a precedent not in line with Ontario Bill 15 and the respondent’s behaviour, including failure to comply with the Tribunal’s Order, represents blatant disrespect for the Tribunal, is contrary to principle of fairness and natural justice and amounts to an abuse of process. Few specifics are given, and the Order allegedly violated is not identified.

35The respondent argues that the applicant has been unreasonable in seeking to re-litigate issues which the Tribunal has already decided, bringing two applications instead of one and generally acting unreasonably, frivolously, vexatiously or in bad faith.

36The issue of costs was not referred to me for determination in the Tribunal’s case conference Order, made on consent of both parties, and I decline to add it as an issue or to determine it.

37Had the issue of costs been properly before me, I am not satisfied that the conduct of either party has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended. I would not have awarded costs to either party.

ORDER

38For the reasons outlined above, I find that the preliminary issue of whether the applicant sustained predominantly minor injuries was determined by the Tribunal’s first decision and is res judicata. As a result, substantive issue i will not be determined by me.

39I find that the applicant is not entitled to payment for any of the treatment plans described in substantive issues iii, iv and v given that the Tribunal found in the first decision that the applicant’s injuries are within the MIG and the MIG limits have been exhausted. As a result, it is unnecessary for me to consider the reasonableness and necessity of these disputed treatment plans. I find that the applicant has not proven her entitlement to NEB claimed in substantive issue ii. There is no interest. There is no award. I decline to add costs as an issue or to determine it.

Footnotes

1. 1O. Reg. 34/10.
2. 2D.T. v. Wawanesa Mutual Insurance Company, 2019 CanLII 110124 (ONLAT).
3. 3Heath v. Economical Mutual Insurance Company, 2009 ONCA 391; Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508.
4. 4The applicant relies on Canada (Minister of Citizenship and immigration) v. Vavilov, 2019 SCC 65.
5. 5D.T. v. Wawanesa Mutual Insurance Company, 2019 CanLII 110124 (ON LAT) at para 21.