RECONSIDERATION DECISION
Before: Derek Grant
Tribunal File Number: 19-006304/AABS
Case Name: Vimaljeet Rattan v. Aviva Insurance Company
Written Submissions by:
For the Applicant: Arthur Semko, Paralegal
For the Respondent: Brittanny Tinslay, Counsel
OVERVIEW
1Vimaljeet Rattan, the applicant, seeks a reconsideration of my decision dated December 11, 2020 (the “decision”). My decision dismissed Vimaljeet Rattan’s claim for aquatic therapy treatment, physiotherapy, a chronic pain assessment and interest, on the basis that the treatment plans were not reasonable and necessary.
2Vimaljeet Rattan makes the request for reconsideration pursuant to Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Common Rules”).
RESULT
3Vimaljeet Rattan’s request for reconsideration is dismissed.
BACKGROUND
4To date, Vimaljeet Rattan has had claims adjudicated on three occasions, with this reconsideration request being the fourth. Notably, an initial in-person hearing with Vice Chair Flude (“VC Flude”) issuing a decision, a reconsideration request resulting in a reconsideration decision by VC Flude, and my decision of December 11, 2020.
5VC Flude’s initial decision and reconsideration decision addressed medical benefit claims for physical treatment and a chronic pain assessment. My decision addressed issues of medical benefits for physical treatment and the cost of a chronic pain assessment.
ANALYSIS
6The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules. A request for reconsideration will not be granted unless one of the following criteria are met:
a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b. The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
c. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
d. There is evidence that was not before the Tribunal when rendering its decision, that could not have been obtained previously by the party now seeking to introduce it and would have affected the result.
7Vimaljeet Rattan relies on the grounds found in Rules 18.2(b), submitting that the Tribunal made an error of law or fact in rendering its decision such that the Tribunal would likely have reached a different result had the error not been made.
8The respondent, Aviva Insurance Company (“Aviva”), provided responding submissions. Essentially, Aviva submits that the Tribunal reviewed the evidence as a whole, focused on the specific reasons for its findings and that Vimaljeet Rattan is attempting to reargue the same position based on the same evidence put forth at the hearing.
9In my decision, Aviva submitted that two of the issues before me were res judicata. Vimaljeet Rattan submits that I incorrectly placed the burden of establishing res judicata on him and not on the party advancing the issue, i.e. Aviva. Vimaljeet Rattan submits that this was an error of law, and that my finding in the decision should be overturned. Aviva submits that Vimaljeet Rattan is simply attempting in his reconsideration submissions to have the Tribunal reweigh the evidence, and thus fails to establish grounds for reconsideration.
Errors of fact and law
Res judicata – OCF-18 dated November 15, 2018
10Vimaljeet Rattan’s position is that, based on this statement, I believe “res judicata to be a rebuttable presumption and, when raised by the Respondent, the Adjudicator believes it is presumed to apply unless it is rebutted by the Applicant.” Vimaljeet Rattan refers to paragraph 14 of the decision, where I state, “more is required than just checking off an additional box in the OCF-18 to rebut Aviva’s claim that res judicata applies to this proceeding.” Respectfully, Vimaljeet Rattan has taken the comment out of context. For the reasons that follow, I disagree with Vimaljeet Rattan’s position on the issue of res judicata.
11At paragraph 13, I set out the similarities between the previously adjudicated claims heard by VC Flude and those before me. Specifically, I pointed out that one additional box was checked indicating a treatment goal of “return to pre-accident work activities” in the disputed November 2018 OCF-18, being the only difference between it and the previously adjudicated claims. Further, I set out in paragraph 14 the medical reasons why the OCF-18 is not reasonable and necessary, ultimately concluding that the issues have been previously determined on the merits. In addition, I commented on a goal of res judicata being avoidance of “this type of tweaking of the claim”.
12Contrary to Vimaljeet Rattan’s position, my use of the term “rebut” was not a belief that there was a legal presumption that Vimaljeet Rattan had to rebut. I did not err in law that Aviva met its burden that res judicata applies to the disputed OCF-18. Even if I did use the wrong word, I determined the substance of the claims, finding that Vimaljeet Rattan failed to establish that the OCF-18 was reasonable and necessary.
Res judicata – OCF-18 dated February 9, 2019
13In his initial decision, VC Flude considered a September 22, 2017 OCF-18 for a chronic pain assessment. In my decision, Vimaljeet Rattan sought funding for an OCF-18 for chronic pain management. Vimaljeet Rattan submits that the February 2019 OCF-18 is different and was not adjudicated on the merits. Vimaljeet Rattan argues that, applying res judicata to this issue amounts to an error of law, since case law has established that “the same question must have been decided” in the first proceeding. Vimaljeet Rattan posits that the February 9, 2019 OCF-18 is not the same question that was decided as that asked in the September 2017 OCF-18.
14Aviva submits that Vimaljeet Rattan failed to consider the fundamental question, that being “does Vimaljeet Rattan suffer from chronic pain syndrome?” Aviva submits that the fundamental question was answered by VC Flude, that Vimaljeet Rattan does not suffer from chronic pain syndrome; therefore, with the OCF-18 for a chronic pain assessment having been found to be not reasonable and necessary, then an OCF-18 for chronic pain treatment is also not reasonable and necessary. This was confirmed in my decision at paragraphs 40-45.
15I agree with Aviva. Specifically, I note at paragraph 40 that, although Vimaljeet Rattan now seeks funding for chronic pain treatment and not an assessment, the medical evidence from the previous proceeding was relevant and applicable especially so since the parties also relied on the medical evidence from the previous decision. In addition, Vimaljeet Rattan did not present any new evidence that he suffers from chronic pain or new evidence to suggest that treatment for chronic pain was reasonable and necessary. On the evidence, I concluded at paragraph 44 that Vimaljeet Rattan has not established any grounds that he suffers from chronic pain and, therefore, the OCF-18 was not reasonable and necessary.
16Aviva met its burden that res judicata applies to both the November 2018 and February 2019 OCF-18s. I find that my application of the doctrine of res judicata in considering both the November 2018 and February 2019 OCF-18s was not an error of law. Further, Vimaljeet Rattan failed to persuade me that the OCF-18s are reasonable and necessary.
Dr. Baath Report
17Vimaljeet Rattan submits that I “stripped Dr. Baath’s opinion letter of any evidential weight”, which amounts to an error. Vimaljeet Rattan argues that an applicant is not barred from filing similar or identical treatment plans, whether or not any of them have been previously decided. In essence, he raises a similar argument that res judicata does not apply when considering Dr. Baath’s letter in support of the November 2018 and February 2019 OCF-18s as neither were “actually decided” in the first proceeding.
18Aviva submits that it is “the prerogative of the Adjudicator to consider evidence in a hearing and assign the appropriate weight which should be given to that evidence.”
19On the evidence, I agree with Aviva. At paragraphs 32-37, I considered the medical evidence before me, and that which was put before VC Flude. In the initial decision, VC Flude found the medical evidence did not support the complaints of constant and severe pain Vimaljeet Rattan reported to Dr. West. I stated at paragraph 37 that, as an orthopaedic surgeon, Dr. Boynton, “has more specialized knowledge of the impact of Vimaljeet Rattan’s accident-related injuries”. As a result of weighing the evidence of Dr. Baath against that of Dr. Boynton, I assigned more weight to the evidence I found persuasive, stating, “I prefer the evidence of Dr. Boynton versus that of Dr. Baath.”
20Upon review, I find my consideration of Dr. Baath’s opinion letter and the weight I assigned to it did not result in an error.
21For all the reasons set out above, Vimaljeet Rattan has failed to persuade me that I made any error in law in applying the doctrine of res judicata, or that I made any error of fact or law. As such, I uphold my decision at first instance.
DECISION
22Vimaljeet Rattan’s request for reconsideration is dismissed.
Derek Grant
Adjudicator
Tribunals Ontario- Licence Appeal Tribunal
Date of Issue: June 4, 2021