Licence Appeal Tribunal File Number: 19-006369/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:
Malosa Kanama
Applicant
and
Waterloo Insurance
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
VICE-CHAIR: D. Gregory Flude
APPEARANCES:
For the Applicant: Malosa Kanama, Applicant Sagar Shah, Counsel
For the Respondent: Julianne Brimfield, Counsel
Heard by way of written submissions
PRELIMINARY ISSUE - REASONS FOR DECISION AND ORDER
BACKGROUND
1The applicant, Malosa Kanama, was involved in an automobile accident on February 21, 2016, and sought benefits from his insurer, Waterloo Insurance (“Waterloo”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg 34/10 (“Schedule”). Waterloo took the position that his injuries were predominantly minor and subject to the $3,500 coverage limit in s. 18(1) of the Schedule. Mr. Kanama’s treatment had reached that limit of coverage. On March 3, 2017, Mr. Kanama unsuccessfully appealed the applicability of the $3,500 coverage limit to this Tribunal (LAT file no. 17-001265/AABS). The decision was released on November 7, 2017, finding that Mr. Kanama’s injuries are, in fact, minor. In a reconsideration decision issued in January 2019, the Tribunal affirmed its decision.
2Mr. Kanama has again applied to the Tribunal. He seeks an Income Replacement Benefit and entitlement to treatment plans. To be entitled to further treatment, Mr. Kanama must show that he is not subject to the $3,500 coverage limit. He asserts that his condition has worsened. In support, he submits further medical notes and records, and findings. In response, Waterloo submits that the question of the applicability of the coverage limit is subject to the legal doctrine of res judicata, literally, the thing that has been decided, and requests the matter be dismissed. Broadly speaking, this doctrine prevents a party from relitigating an adverse decision, whether based on available evidence that was not advanced at the hearing or on a new legal theory.
3I must decide if the matter should be dismissed as it was previously addressed. While I accept Mr. Kanama’s submission that consideration of entitlement to benefits under the Schedule is not static and that conditions may deteriorate requiring the Tribunal to revisit previous findings, I find that Mr. Kanama has fallen far short of establishing a material change in his condition sufficient to reopen the debate about the applicability of the coverage limit.
PRELIMINARY ISSUE
4The following preliminary issue, raised by the respondent, is now before me:
i. Is the applicant precluded from proceeding with this claim for treatment as the Tribunal has already issued a decision that his injuries are predominantly minor, and that he is subject to the $3,500 coverage limit in s. 18(1) of the Schedule? Note: this is a restatement of the issue from the case conference order as that document refers to other text within it in defining the issue.
5As noted in the case conference report and order, there are also substantive issues in dispute. Two of the substantive issues, a claim for payment of an income replacement benefit and a claim for repayment of the income replacement benefit, are not caught by the question of the applicability of the coverage limit. However, the claims for treatment, assessment and assistive devices do not survive a finding the coverage limit applies, as the full $3,500 has been expended.
The legal framework
6The doctrine of res judicata is a common law doctrine designed to bring finality to legal proceedings. It is generally considered to incorporate two branches, issue estoppel and cause of action estoppel. As set out in 16-003909 v Aviva Insurance Canada, 2017 CanLII 59502 (ON LAT) (“Aviva”) at paragraph [15], res judicata has four elements:
It is generally accepted that there are four prerequisites to be established before a finding of res judicata may be made:
The two actions must involve the same parties or their privies;
The claim sought to be asserted must have been within the prior court’s jurisdiction;
Prior adjudication must have been on the merits;
The prior decision must have been a final judgment.
7Even where the strict elements of res judicata have not been met, the common law has developed other doctrines to bring finality to legal proceedings. These doctrines were reviewed by the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (“Toronto”). The Court recognized that the purpose of the various common law doctrines was to protect the integrity of the judicial process. While the Toronto case involved the integrity of the criminal justice system, the principle easily applies to all judicial and quasi-judicial decision makers.
8I find that on this motion, the four elements of the test for res judicata are met. The litigation is between the same parties. Since 2016 the Tribunal has had exclusive jurisdiction to decide matters arising out of the Schedule [Insurance Act, R.S.O. 1990 c. I.8. s. 280(3)]. The prior decision was on the merits of the claim, it is a final judgment, and the appeal rights have been exhausted. Subject only to the proviso that the Schedule mandates a more flexible approach to a potential worsening condition, res judicata applies.
9My difficulty with the application of the various common law doctrines is that they are not readily adaptable to the Schedule. Impairments resulting from motor vehicle accidents are not static. While the Schedule has been much amended over the years, the version in force at the time of Mr. Kanama’s accident provided for the payment of medical and rehabilitation benefits for a period of ten years from the date of the accident. Having set a ten-year entitlement period, the Legislature has indicated that it has contemplated the possibility that injuries leading to impairments that at first seem minor or inconsequential may deteriorate and require re-examination. Thus, Mr. Kanama cannot relitigate his entitlement to the earlier benefits in dispute, or the question of whether his impairments at that time were minor, but it remains open to him to bring forward evidence of recent deterioration lifting him out of the minor injury provisions.
10This analysis has found favour with the Tribunal. In Aviva, the Tribunal addressed a claim for an attendant care benefit. The applicant’s entitlement to the benefit had been the subject of proceedings before the Financial Services Commission of Ontario (“FSCO”), the Tribunal’s predecessor. FSCO had limited the applicant’s claim to an attendant care benefit to several months shortly after the accident. The applicant advanced a new claim for an attendant care benefit, arguing that the new claim was for a different period and was not covered by the FSCO decision. In finding that the applicant’s claim was not subject to res judicata because of the earlier FSCO decision, the Tribunal noted: “Res judicata is a discretionary remedy which has limited application in disputes for ongoing benefits under the Schedule because the Schedule allows an insured to file multiple applications for some benefits.”
11In 17-006816 v Co-operators General Insurance Company, 2017 CanLII 81577 (ON LAT) (“Co-operators”), the applicant asserted a claim for a treatment plan despite an earlier decision from this Tribunal that held the applicant was subject to the $3,500 coverage limit. The Tribunal determined that the matter could proceed to a hearing. It did not fully explore the earlier finding of the applicability of the coverage limit, deciding that res judicata did not apply because the issue was different. These cases support the conclusion that entitlement under the Schedule is not static.
12The reasoning in both Aviva and Co-operators revolved around each adjudicator’s finding that res judicata did not apply. Thus, while the coverage limit had been previously determined in Co-operators, in the adjudicator’s interpretation, the fact that the specific treatment plan had not been decided negated the applicability of the doctrine. The same reasoning was applied in Aviva, albeit with more support from the wording of the Schedule itself.
13Aviva suggests that res judicata triggers discretion to enforce the doctrine or not. This concept dovetails with the more flexible mandate of the Schedule, but, as with all discretionary remedies, it must be exercised judicially. Mr. Kanama submits, and I accept, that the test for the exercise of discretion in res judicata cases is set out in the decision of the Supreme Court of Canada in Toronto. At paragraph [52] the Court stated:
There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context.
14Mr. Kanama relies on the ground that “fresh, new evidence, previously unavailable, conclusively impeaches the original results.” There are two elements to this ground: fresh, new evidence, previously unavailable and that the new evidence is conclusive.
15Mr. Kanama’s assertion that his condition has deteriorated raises a procedural issue - what is the best forum to determine that issue? Should the issue be determined on a preliminary issue motion such as this or should it be referred to the hearing adjudicator - the approach taken in Aviva and Co-Operators? I conclude, that in this matter, where Mr. Kanama has put his evidence in support of recent deterioration into his record, that I am ideally suited to determine the issue. Having said that, I find the new evidence put forward by Mr. Kanama is far from conclusive.
the new evidence
Previous Findings
16In order to appreciate the impact of the new evidence, a review of the evidence and findings in the earlier decision is in order. Sections 18(1) and (2) of the Schedule define when the $3,500 limit is applicable and when a pre-existing condition may negate the application of the limit:
- (1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline.
(2) Despite subsection (1), the $3,500 limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline.
17Section 18(1) requires close reading. The trigger for entitlement is an impairment, but where that impairment arises out of “predominantly a minor injury,” the $3,500 coverage limit applies. It flows from that wording that in applying the coverage limit to impairments arising out of injuries that are not listed in the definition of “minor injury” in s. 3, that is, “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,” the focus is on the manner in which that injury causes an impairment. It is insufficient to say the impairment is not on the list of injuries. An applicant’s predominant impairment must flow from the unlisted injury.
18The earlier decision found that Mr. Kanama has sustained predominantly minor injuries and that s. 18(2) did not apply. In arriving at that decision, the adjudicator considered three elements: Mr. Kanama’s alleged psychological impairment, chronic pain, and pre-existing condition. The adjudicator dealt with each one individually and concluded that Mr. Kanama had failed to satisfy his onus of showing the limit was not applicable. The doctrine of res judicata applies to this decision to the extent that, at the time of the decision, Mr. Kanama had impairments that were predominantly a minor injury, and he did not have a pre-existing condition to trigger the provisions of s. 18(2). To succeed on this application, Mr. Kanama must advance evidence of recent deterioration.
19While I find that Mr. Kanama is not prevented by the doctrine of res judicata from bringing new evidence, I find that his “new” evidence is not actually new in the sense of being a new or significantly deteriorated condition. In short, Mr. Kanama alleges that his new evidence shows he suffers from chronic pain based on various medical notes and records from 2018 and 2019, obviously occurring after the Tribunal's decision in 2017. However, while these notations literally occur after the 2017 Decision, these same types of complaints were asserted following the accident and presented to the Tribunal in the earlier decision. There is no conclusive evidence that his condition in 2018 and 2019 has deteriorated from his medical condition as presented to the Tribunal in 2017. Thus, the Tribunal has ruled on these same medical conditions. For instance, my review of Mr. Kanama’s new evidence shows:
a. In 2017 – 2018, the clinical notes and records (cnrs) of his family doctor show his major concern was gastrointestinal (GI) and hypertension. Hypertension remained a problem and an August 13, 2018 note indicates he is not compliant with treatment.
b. On April 30, 2018, cnrs show Mr. Kanama complained about back and joint pain.
c. A June 21, 2018 report from Dr. H. Amani, physiatrist, finds “mildly decreased back range of motion with end pain.” Prior imaging studies in May 2018 show “mild degenerative change at L5-SI with facet arthrosis and loss of disc height space.”
d. An August 13, 2018 cnr states: “patient also notes that he has anxiety and mood disorder secondary to chronic pain. Patient requests treatment. Rx provided. Discussed referral. At the present moment, patient will like to try Rx and revisit the psychiatry consultation. Discussed at next visit.” This issue is never revisited in the clinical notes and records. The described condition is actually less severe than the symptoms Mr. Kanama complained of at the first hearing which included “symptoms of anxiety and depression and reported intermittent suicidal thoughts arising from his social isolation after the accident”
e. A March 12, 2019 visit focused on GI issues but there was a question mark about possible anxiety causing the GI pain issues. There is no follow-up regarding potential anxiety.
f. A March 21, 2019 report from Dr. Armani makes the same physical findings as the June 21, 2018 report and states: “I advised him my recommendations are the same as when I last saw him.”
g. A March 28, 2019 imaging report – lumbar and thoracic spine show “no significant interval change compared with previous examination.” The previous x-ray examination was in June 2016, well before the 2017 Decision.
h. An April 11, 2019 cnr states “thoracic and lumbar spine x-ray was unremarkable.”
i. A July 4, 2019 report from Dr. Amani makes the same finding as the June 21, 2018 and March 21, 2019 report and states “I advised him my recommendations are the same as when I last saw him.”
j. An August 16, 2019 MRI study finds “There are five lumbar vertebrae present. Alignment is within normal limits. There is minimal desiccation of the L5-S1 disc without significant disc bulge or herniation. No significant lumbar disc or herniation. The lumbar canal and neural foramina are normal in appearance.”
k. An October 27, 2019 handwritten note from Dr. Amani to the applicant’s family doctor reviews a “completely normal” MRI.
20The above medical records indicate that Mr. Kanama’s back issues were largely unchanged from June 2016. While Mr. Kanama complained of chronic pain from time to time in 2018 and 2019, the imaging studies showed no change, and his treating physiatrist did not change his recommendations over numerous visits. From a psychological perspective, there is one reference to anxiety in 2018, but the issue is not dealt with again and there is certainly no diagnosis of a worsening psychiatric condition. All of these issues were squarely before the Tribunal in 2017 and there is no evidence of deterioration since the 2017 hearing.
ORDER
21Mr. Kanama remains subject to the $3,500 coverage limit in s. 18(1) of the Schedule and, accordingly, his claims with respect to the treatment plans in dispute (issues [3] iv through viii in the CC Report and Order dated August 21, 2020) are dismissed.
22As stated above, there remain issues that are not caught by the coverage limit in s. 18(1). Within 30 days of the release of this preliminary issue decision, the Tribunal will schedule a case conference to address the remaining issues.
Released: April 11, 2022
__________________________
D. Gregory Flude
Vice-Chair