Pihokker v. The Personal, 2022 CanLII 20123

Citation: Pihokker v. The Personal, 2022 ONLAT 20-011554/AABS

Licence Appeal Tribunal File Number: 20-011554/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:

Kyle Pihokker

Applicant

and

The Personal

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Dean Trinetti, Counsel

For the Respondent: Rosalind Eastmond, Counsel

HEARD: By way of written hearing

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on January 8, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010.¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2Both the applicant and respondent made submissions, with the applicant choosing to forgo submitting Reply submissions.

ISSUES

3At the Case Conference, the parties agreed that the following issues are to be decided by the Tribunal:

i. Are the applicant’s injuries predominantly minor, as defined in section 3 of the Schedule, and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?

ii. Is the applicant entitled to $1,921.00 for chiropractic services, proposed by MediAssess Evaluation Inc., in a treatment plan submitted on January 31, 2019?

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

LAW

4Section 3(1) of the Schedule states that a minor injury consists of one or more a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. Section 3(1) of the Schedule also establishes the treatment framework regarding minor injuries.

5Section 3(7)(e) of the Schedule states that for the purpose of the Schedule, an expense related to goods or services is not incurred unless: the insured person has received the goods/services to which the expense relates, the insured person has paid, has promised to pay or is legally obligated to pay the expense and the person who provided the goods/services did so in the course of his/her/their normal employment/occupation/profession or sustained an economic loss as a result of providing these goods/services to the insured person.

6Section 3(8) of the Schedule states that if in a dispute as described by section 280 of the Schedule, the Tribunal finds that an expense was not incurred due to the insurer unreasonably withholding or delaying payments of a benefit for this expense, the Tribunal may, in order to determine entitlement to this benefit, deem the expense to have been incurred.

7In Scarlett v. Belair Insurance,² the Divisional Court reviewed the minor injury provisions in the Schedule, finding that they were a limit on an insurer’s liability, not an exclusion from coverage, and that the onus of establishing entitlement beyond the cap rests with the claimant. Applying Scarlett, the applicant must establish his entitlement to coverage beyond the $3,500 cap for minor injuries.

8Sections 14, 15 and 16 of the Schedule states that an insurer shall pay medical and rehabilitation benefits to, or on behalf of an applicant so long as said person sustains an impairment as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the applicant as a result of the accident.

9Section 18(1) of the Schedule states that when an insured person sustains an impairment that is predominantly a minor injury, the total cost of his/her/their medical and rehabilitation benefits payable shall not exceed $3,500.00.

10Section 51(2) of the Schedule states that interest shall be paid in respect of a benefit that is overdue, i.e. if the insurer does not pay the benefit within the time stated by the Schedule.

11Section 10 of R.R.O. 1990, Reg. 664: Automobile Insurance states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal, in additional to awarding the benefits and interest which the insured person is entitled to, may award a lump sum of up to fifty percent of the amount to which the person was entitled to at the time of the award, with interest, on all amounts owing to the insured.

RES JUDICATA

Evidence and submissions

12The respondent argued that the principle of res judicata³ applied to the applicant’s current application before the Tribunal. The Tribunal released decision 18-000227/AABS⁴ on January 31, 2019 (the ‘2019 decision’) to determine if the applicant’s injuries fell outside the MIG and if two treatment plans for chiropractic services were reasonable and necessary.

13The 2019 decision found that the applicant’s injuries fell within the MIG as he failed to provide a full analysis on how his pre-existing condition would prevent maximal medical recovery, pursuant to section 18(2) of the Schedule. The respondent provided the Tribunal and applicant a copy of the decision in its Book of Authorities.

14The respondent submitted that since the Tribunal has already rendered a decision in this matter and the applicant did not follow the Tribunal’s Rules⁵ regarding a reconsideration of the 2019 decision nor appeal the 2019 decision (i.e., to the Divisional Court), the 2019 decision is final, and the applicant ought not to be able to pursue this application. It argued that the applicant is trying to re-litigate and re-argue the case adjudicated in the 2019 decision.

15The respondent relied on D.T. v. Wawanesa Mutual Insurance Company⁶. In D.T., the Tribunal laid out conditions for an application that was previously adjudicated to be considered in a new application: is there “fresh, new evidence submitted that was previously unavailable and does that new evidence conclusively impeach the original results”.⁷

16Based on this, the respondent argued that in the current application, the parties, the subject matter, and claim are all the same as the applicant’s previous application which led to the 2019 decision.

17The respondent submitted that the only “new” evidence submitted by the applicant consists of the updated reports of Dr. Behzad Taromi, Orthopaedic Surgeon, of December 2, 2019, and February 24, 2020, and the OCF-18 for the treatment plan in dispute.

18In the report of December 2, 2019, Dr. Taromi diagnoses the applicant with previously noted left knee total medial meniscectomy and early degenerative disease. Dr. Taromi recommends that the applicant obtain an MRI of his left knee to rule out a meniscal tear.⁸ Dr. Taromi noted that the applicant still had complaints of left knee pain. Based on this, Dr. Taromi discussed managing the applicant’s symptoms with a custom-made brace for standing, walking and using a ladder.

19Dr. Taromi saw the applicant again on February 24, 2020,⁹ approximately two and a half months after the last visit. The applicant reported that he was continuing his physiotherapy and exercise program, but still experienced left-knee pain from activities like squatting and kneeling but had no knee locking, grinding or give.¹⁰

20Dr. Taromi noted that an MRI of the applicant’s left knee was conducted on February 3, 2020 and found that the applicant’s lateral meniscus was intact.¹¹ The MRI showed signs of truncation of the applicant’s medial meniscus and a partial meniscectomy, with some fraying of the medial meniscus; however, there was no evidence of a re-tear. The applicant’s ligaments were also uninjured.

21The OCF-18, completed by Dr. Patrick Safieh, Physician, requested a MRI of the applicant’s left knee. The OCF-18 sought to address the applicant’s injuries, which include headache, sprain and strain of the cervical spine, shoulder joint, thoracic spine and lumbar spine, chronic instability of the knee, nervousness and sleep disorder.¹²

22The goals of this OCF-18 include pain reduction, and an MRI assessment of the applicant’s left knee to evaluate the applicant’s injuries, return to his activities of normal living and guidance on multidisciplinary care.¹³

23The OCF-18 proposes that the applicant receive the MRI of his left knee, and documentation and support activity.¹⁴

24The respondent submitted that based on the above, the applicant’s new evidence does not conclusively impeach the Tribunal’s original findings of the 2019 decision,¹⁵ and therefore, this application is subject to res judicata.

25The applicant made no submissions regarding the principle of res judicata and if this matter had already been decided by the Tribunal.

Analysis

26After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that this application is subject to res judicata as its merits have already been decided by the Tribunal.

27I agree with the submissions of the respondent related to the test for res judicata as seen in D.T. v. Wawanesa Mutual Insurance Company.¹⁶ I am persuaded by D.T. and adopt it here. Though I am aware that the applicant was relying on new evidence, as discussed above, I must note that the Tribunal already determined that the applicant’s injuries fell within the MIG.

28Therefore, the specific issues common to both applications have been decided, and said decision is final, as the applicant has not pursued a reconsideration by this Tribunal or an appeal to the Divisional Court.

29In terms of the non-applicability of res judicata for this application, as discussed above, certain conditions ought to be met, namely new evidence that was submitted and not previously available and that said new evidence would conclusively impeach the original finding.¹⁷

30In this case, I agree with the respondent’s submissions that the applicant’s new evidence, meaning the reports of Dr. Taromi and the disputed OCF-18, do not conclusively impeach the original findings of the Tribunal. Upon reviewing these reports and the OCF-18, the only new findings I was able to extract were that the applicant still experienced left knee pain, was continuing physiotherapy and exercise, and that Dr. Taromi did not making any findings regarding the applicant’s knee injury on his MRI that would remove his injury from the MIG, as truncation of the applicant’s medial meniscus is normally considered a MIG injury.

31Furthermore, the OCF-18 relied on by the applicant did not provide any new evidence to support a conclusive impeachment of the Tribunal’s previous findings.

32Therefore, the applicant cannot proceed with this application, as it is subject to res judicata and has already been determined by the Tribunal. Based on this, his application is dismissed.

CONCLUSION

33The applicant cannot proceed with this application, as the issue of MIG determination is subject to res judicata.

ORDER

34The application is dismissed.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635
3. 3As seen in D.T. v. Wawanesa Mutual Insurance Company, 2019 CanLII 110124 (ON LAT).
4. 418-000227 v The Personal Insurance Company, 2019 CanLII 34616 (ON LAT).
5. 5Licence Appeal Tribunal (LAT) Common Rules of Practice and Procedure, October 2, 2017.
6. 6D.T. v. Wawanesa Mutual Insurance Company, 2019 CanLII 110124 (ON LAT).
7. 7Ibid.
8. 8Dr. Taromi’s report of December 2, 2019.
9. 9As seen in Dr. Taromi’s notes from February 24, 2020.
10. 10Ibid.
11. 11Ibid.
12. 12As seen in the OCF-18 for $1,921.00 for chiropractic services, proposed by MediAssess Evaluation Inc.
13. 13Ibid.
14. 14Ibid.
15. 1518-000227 v The Personal Insurance Company, 2019 CanLII 34616 (ON LAT).
16. 16D.T. v. Wawanesa Mutual Insurance Company, 2019 CanLII 110124 (ON LAT).
17. 17Ibid.