Citation: Pham v. Coseco Insurance Company, 2022 ONLAT 20-004749/AABS

Licence Appeal Tribunal File Number: 20-004749/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:

Phuong (Clara) Pham

Applicant

and

Coseco Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Rajiv Kapoor, Paralegal

Kathryn McRae Hill, Paralegal

For the Respondent:

Kathleen O’Hara, Counsel

HEARD:

By way of Written Submissions

REASONS FOR DECISION

OVERVIEW

1Clara Pham, (“the Applicant”), was involved in an automobile accident on May 28, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). Coseco Insurance Company, (“the Respondent”), denied benefits on the basis that the Applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (the “MIG”). The Applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

[2] The preliminary issue in dispute for this hearing is whether the claims(s) in this hearing have previously been adjudicated and decided, thus barring the Applicant from proceeding with this appeal, pursuant to the doctrine of res judicata?

ISSUES

3The substantive issues in dispute for the second hearing are as follows:

I. Has the applicant sustained a minor injury as defined under the Schedule as a result of the accident, and is therefore subject to the $3,500 funding limit on treatment?

II. Is the Applicant entitled to receive a medical benefit in the amount of $10,204.92 for a chronic pain treatment plan, dated November 29, 2019?

III. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the preliminary issue is moot and that the Applicant is unsuccessful on all substantive issues in dispute.

BACKGROUND

5The Applicant was the driver of a vehicle which was struck from behind while slowing down to permit a city bus to merge into the lane.

6The Respondent determined that the Applicant sustained a predominantly minor injury as a result of the accident. The Applicant was subjected to the MIG and the $3,500.00 funding limit on treatment. The Applicant disagreed and felt that she should not be subject to the MIG and that she is also entitled to certain treatment and assessment plans. She applied to the Tribunal for resolution of the dispute (“the first application”).

7The issues in dispute for the first application were ordered to a hearing in writing. The parties made written submissions and presented their evidence. The first hearing addressed whether the Applicant sustained a minor injury and was subject to the MIG and the $3,500.00 funding limit on treatment. It also sought to determine whether she was entitled to certain disputed treatment and assessment plans.

8The Applicant filed a second application with the Tribunal, seeking entitlement to a chronic pain treatment plan (“the second application”). The Applicant’s entitlement to the disputed chronic pain treatment plan is contingent on a finding that her injuries are not predominantly a minor injury, which is an issue at the first hearing. The second application was filed after submissions were made for the first hearing, but before that decision was released.

9The Applicant then moved to combine the issues on the second application with the issues on the first application. The motion was denied. The Tribunal determined that it would be procedurally unfair to combine the applications because the written submissions for the first hearing had already been made.

10Later, after the motion decision was released, the parties were advised that the first hearing had not been assigned to an adjudicator. Shortly after learning this, the Applicant again moved to combine the two applications.

11Her second motion was also denied. The Tribunal maintained that it would be procedurally unfair to combine the applications because the parties had made their arguments on the issues in dispute in the first hearing. Importantly, the second motion decision ordered that “the decision rendered in the first application regarding the Minor Injury Guideline, will stand for the second application, to prevent a “second kick at the can.” The Tribunal also permitted the Applicant an extension of the deadline to file for reconsideration on the first application, until 30 days after this decision is released.

12The Tribunal issued a decision on the first hearing. It determined that the Applicant sustained a predominantly minor injury as a result of the accident. The Tribunal also found that the Applicant was not entitled to the disputed treatment and assessment plans because she failed to meet her evidentiary burden to establish that the treatment was reasonable and necessary.

13The parties made submissions for the second hearing after the decision in the first hearing was released, in accordance with a Tribunal order. The Applicant claims entitlement to the disputed chronic pain treatment plan from a statutory and substantive perspective. To her, she is entitled to the treatment plan because the Respondent failed to respond to the plan in accordance with section 38 of the Schedule. In the alternative, she claims entitlement to the plan because the treatment proposed is reasonable and necessary based on her medical records.

14The Respondent submits that the doctrine of res judicata applies to this matter. It submits that, from the first application, the Tribunal made the determination that the Applicant sustained a predominantly minor injury and is subject to the MIG and the $3,500.00 funding limit on treatment. The Respondent submits that there is no need to consider the Applicant’s entitlement to the disputed chronic pain treatment plan, as the Tribunal already determined that the Applicant is subject to the MIG. Alternatively, the Respondent resubmits that the Applicant sustained a predominantly minor injury and is subject to the MIG and not entitled to the dispute chronic pain treatment plan.

15In reply, the Applicant submits that the decision on the first application is not final as the reconsideration process has not occurred and will not occur until after this hearing is complete. She submits that the characterization of her injuries is not a static designation and that the Tribunal should assess the evidence introduced by the Applicant in this hearing. I infer from her submissions that she believes that this decision on the application of the MIG should be addressed again.

16The Respondent wrote to the Tribunal following the Applicant’s reply submissions. To the Respondent, it was improper for the Applicant to submit new evidence in reply and it was incumbent on the Applicant to submit her evidence with her initial written submissions. The Respondent asks me to disregard the new evidence and strike certain paragraphs from the reply or, in the alternative, to permit its additional submissions. It refers to 16-000879/AABS v. Unifund Assurance Company, AJ v. Aviva, and Sarmad v. Coseco¹.

17The Applicant replied to the Respondent’s letter. She states that she did not violate the disclosure rules and is simply replying to the arguments made by the Respondent and provided certain exhibits to support her claim. The Applicant also noted that the issues raised by the Respondent ought to have been addressed by way of Motion pursuant to Rule 15. She asks that I disregard the Respondent’s letter.

18The Respondent wrote another letter, replying to the Applicant’s letter. The Respondent’s second letter notes that the Applicant addressed only 2 of the 16 evidentiary items it raised in it’s first letter. It maintains the position that the Applicant’s new evidence be disregarded, and the related submissions be struck from the record.

Res Judicata

19The Applicant’s initial submissions never addressed whether her claims are barred by the doctrine of res judicata. The concept was first raised by the Respondent in its responding submissions.

20The Respondent submits that the dispute over the characterization of the Applicant’s injuries as falling within the minor injury definition was decided in the hearing for the first application. The respondent maintains the required four criteria for Res judicata have been met: the parties are the same in both actions, the prior claim was made within the same Tribunal, the prior adjudication was on the merits of the claim, and the prior decision was a final judgment.

21In reply, the Applicant submits that the decision in the first hearing is not final as the reconsideration has not occurred. The Applicant characterizes the Respondent’s arguments as misleading and deceptive.

22I find that the characterization of the Applicant’s injuries was decided in the first application and that decision is final. To me, the decision issued with respect to the first application is a final decision because it provides a decision on the substantive issues in dispute and is not an interlocutory decision.

23My finding is based on information in the Common Rules of Practice & Procedure (“the Rules”). The Rules do not expressly define what makes a decision final, however, the definition can be extrapolated from Rule 18, which addresses the reconsideration process at the Tribunal. Specifically, Rule 18.1 stipulates that a reconsideration request may be made within 21 days of the date of “the decision of the Tribunal that finally disposes of an appeal.” To me, the decision on the first application is a decision of the Tribunal that finally disposes of an appeal.

24My interpretation of what constitutes a final decision is consistent with the Tribunal’s Motion Decision and Order dated May 12, 2021. The Applicant sought to combine the two applications and was denied that opportunity. In that Decision, the adjudicator expressly stated, “the decision rendered in the first application regarding the Minor Injury Guideline, will stand for the second application, to prevent a “second kick at the can”.

25Further, the motion adjudicator also noted that the timeline for reconsideration, if any, on both applications, is extended to commence after the release of the second decision. There would be no reason to extend the deadline to request a reconsideration if the decision on the first appeal was not a final decision. Considering the above, I find that the issue of whether the Applicant sustained a minor injury has been decided.

NEW EVIDENCE AND THE MINOR INJURY GUIDELINE

26Res judicata may be waived in certain situations, such as when fresh, new evidence, previously unavailable, conclusively impeaches the original results². In addition, the characterization of the Applicant’s injuries is a fluid issue and new evidence may show that the Applicant’s sustained injuries which fall outside the MIG³.

27Submissions for the Applicant’s first appeal were made on February 24, 2020. The deadline to exchange documents for that hearing was February 7, 2020.

28Since that time, the Applicant produced additional records from her family physician, Dr. Ledesma-Cadhit, and an updated decoded OHIP summary. She submits that she visited her family physician regularly and complained of pain, that her condition worsened over time, that the Respondent’s IE assessors’ reports are outdated and that her reports should be preferred, and that she meets the test for chronic pain according to the American Medical Association (“AMA”) Guides.

29The Respondent requests that the Applicant’s submissions and evidence, brought up for the first time in reply, be struck from the record because they were improperly advanced. Alternatively, it submits that the Applicant has not met her onus to prove that her injuries are not within the MIG.

30I have reviewed the evidence and submissions and find that the Applicant sustained a predominately minor injury and is subject to the MIG and the $3,500.00 funding limit on treatment.

31Up front, I will not consider the Applicant’s submissions on the IE reports and her attendance at the family physician’s office that were previously considered by the Tribunal. The Adjudicator in the prior decision considered the reports of Dr. Vitelli, neuropsychologist, Dr. Peric-Todorovic, psychologist, Dr. Zabieliauskas, physiatrist, Dr. Hines, psychologist, and the records from Danforth Health and Wellness. It would be improper for me to reassess the reports when they were already addressed at the initial hearing.

32The Tribunal previously considered whether the Applicant sustained a chronic pain injury which removes her from the MIG and determined that she did not. The Tribunal considered the test according to the AMA guides as well as the less-formal review of the Applicant’s overall functionality and maintained that she sustained a minor injury. At this junction, any analysis as to whether the Applicant developed a chronic pain injury must focus solely on the new evidence submitted.

33The Applicant’s new evidence is uncompelling and does not conclusively impeach the previous findings. The new evidence consists of updated CNRs from Dr. Ledesma-Cadhit, the Applicant’s family physician, and an updated OHIP summary. The Applicant submits that Dr. Ledesma-Cadhit recommends chronic pain treatment, but she does not direct me to records that confirm that and my review of the CNRs does not reveal any such recommendations. The same issue applies to the OHIP records. The document notes the Applicant’s visits to OHIP-funded healthcare providers but provides no detail on any diagnoses or recommendation. I am unable to determine that the Applicant sustained an injury that falls outside the MIG without that information. Thus, the Applicant has not met her evidentiary burden.

ENTITLEMENT TO THE DISPUTED CHRONIC PAIN TREATMENT PLAN

34The Applicant also claims entitlement to this treatment plan on a statutory basis. She claims that the Respondent failed to fulfil its statutory obligations pursuant to section 38(8) of the Schedule, thus entitling her to the goods and services pursuant to section 38(11). She also claims that it is reasonable and necessary as a result of her accident-related injuries.

35The Applicant claims entitlement to the chronic pain treatment plan on the grounds that the Respondent failed to provide an appropriate notice as required by section 38(8) of the Schedule. The Respondent submits that the Applicant failed to specifically identify the basis for this claim and thus, has not met her evidentiary burden.

36I agree with the Respondent and find that the Applicant has not met her burden to prove that the Respondent failed to comply with section 38 of the Schedule.

37Section 38(8) of the Schedule lists several components to a proper notice. In short, the notice must be clear an unequivocal, include the medical and any other reasons for the decision, and must be made within 10 business days of receipt of the plan. Section 38(11) precludes the Respondent from relying on the MIG to deny a treatment plan as a result of an untimely response. That section also provides that the Applicant is entitled to the goods and services related to the treatment plan that are incurred starting on the 11th business day following receipt of the plan and ending when a compliant notice is given.

38Here, the Applicant provides no specificity as to how the Respondent’s notice is deficient. She makes no mention of the content or timeliness of the notice and never included the Respondent’s notice for me to review. Considering this, I find that the Applicant has failed to meet the minimum requirement to identify where the deficiency lands and thus, has not met her burden to prove statutory entitlement to the treatment plan in dispute.

CONCLUSION

39The Applicant sustained a predominantly minor injury in the subject accident. The characterization of her injuries was decided in the first hearing.

40The Applicant cannot be entitled to the disputed chronic pain treatment plan unless her injuries are found to fall outside of the MIG. Yet, she made no initial submissions on that issue and addressed it only through her reply submissions. In any event, I considered these submissions and accompanying evidence and found that it does not conclusively impeach the findings in the first hearing.

41I find that the Applicant is not entitled to the disputed chronic pain treatment plan as she has not met her burden. It follows that no interest is owing because the Applicant is not entitled to the treatment plan.

42The second application is dismissed.

Footnotes

1. 12017 CanLII 9811, 2020 CanLII 72500, and 2021 CanLII 45649
2. 2Toronto (City) v. CUPE Local 79, 2003 SCC 63, para. 52
3. 317-006816 v The Co-operators General Insurance Company, 2018 CanLII 110950 (ON LAT)