Licence Appeal Tribunal File Number: 20-001056/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:
Maureen Johnson
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Maureen Johnson, Applicant
Jessie V. Tran, Paralegal
For the Respondent:
The Dominion of Canada General Insurance Company
Christopher Deeley, Counsel
HEARD:
By way of written submissions
REASONS FOR DECISION [AND/OR ORDER]
BACKGROUND
1The applicant was involved in an automobile accident on November 25, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2On January 24, 2019, the applicant filed an application (19-001372/AABS) to determine whether her injuries fell within the Minor Injury Guideline (‘MIG’) and entitlement to various medical benefits that were submitted to the respondent between January and April 2017. A case conference took place on August 7, 2019, and a written hearing date was scheduled for January 20, 2020.
3On February 4, 2020, the applicant filed a second application (20-001056/AABS) with the Tribunal. The second application included the issue of whether the applicant’s injuries fell within the MIG and additional treatment plans that were submitted to the respondent between February and December 2018.
4On June 9, 2020, Adjudicator Johal released the hearing decision for the first LAT application which concluded that:
a) Based on the totality of the evidence, the Applicant sustained predominately minor injuries as defined in the SABS and she is subject to treatment within the MIG.
b) As a result of having found the Applicant’s injuries to be within the MIG and the MIG limits being exhausted, there is no need to determine the reasonableness and necessity of the treatment plans and the cost of examinations.
5The Applicant did not request a reconsideration of Adjudicator Johal’s hearing decision and nor did she pursue an appeal.
6The parties attended a case conference on August 25, 2020 in relation to the second application. The applicant added additional treatment plans, which were denied between April and October 2019.
7The respondent submitted that the applicant’s current application be dismissed because the Tribunal had already issued a hearing decision dated June 9, 2020 on the merits in a prior LAT application concluding that the Applicant’s injuries fall within the MIG. The Tribunal’s decision is final as the applicant did not pursue a reconsideration or appeal. The current LAT application is barred by the doctrine of res judicata. Moreover, there is no new fresh evidence that was unavailable at the time of the first hearing that would conclusively impeach the results of the first hearing.
8The applicant submitted that a new application can be filed when there is new evidence which requires a determination regarding the MIG. It is stated that “Ms. Johnson’s position is that the current application requires [sic] determination and should not be dismissed. The application contains new evidence and expert opinion, which was not available prior to the initial application. The new evidence includes a chronic pain report by Dr. Melody Nguyen, physiatrist, a psychological report by Dr. Erin D. Langis, psychologist and an orthopaedic report by Dr. Luke Bui, general surgeon. The applicant submitted that her ongoing health conditions warrant removal from the MIG and is relying on the new evidence in support of this.
ANALYSIS
Is the MIG issue res judicata?
9The doctrine of res judicata prevents a party from relitigating an issue that has already been decided. Four preconditions must be established before the adjudicator can determine whether to exercise their discretion to apply res judicata.2 The factors are:
I. The parties must be the same in both actions;
II. The prior claim must be within the jurisdiction of the Court/Tribunal;
III. The prior adjudication must have been on the merits; and
IV. The prior decision must have been a final judgement.
10Res judicata can be waived in the following situations:
I. The first proceeding is tainted by fraud or dishonesty;
II. Fresh, new, evidence is submitted that was previously unavailable that would conclusively impeach the original results; or
III. When fairness dictates that the original result should not be binding in the new context.3
11I 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.
12In my view, the four preconditions for res judicata are satisfied. The parties are the same for both actions. The prior claim was within the jurisdiction of the Tribunal. The decision in the first appeal is based on the merits. Adjudicator Johal reviewed the applicant’s medical records and submissions. He found that the applicant sustained predominantly minor injuries which are treatable within the MIG. The Tribunal was of the view that the applicant did not demonstrate that she suffers from chronic pain or that she has a pre-existing condition that would remove her from the MIG. The decision in the first appeal is a final judgment. The applicant did not file a reconsideration request and nor did she appeal the decision.
Should res judicata be waived based on new evidence?
13Any application to change a finding must be based on “fresh” new evidence that was not available at the arbitration or appeal, that would conclusively impeach the original results, or that there was an error in the order. The applicant submitted that the application contains new evidence and expert opinion, which was not available prior to the initial application. However, there are no reasons put before me to why this new evidence was not available to Adjudicator Johal.
14In the reply, the applicant stated that:
Further, the Respondent continuously argues that all of the new evidence requires an explanation as to why it was not available at the time of determination. Such explanations would require speculation. However, one explanation could be that the physicians and assessors may have been unavailable prior to the determination.
15The applicant does not explicitly state that this was the reason why these reports were not made available to Adjudicator Johal and nor does the applicant provide any evidence in support of this “explanation”.
16The respondent submitted that in the previous hearing, the applicant argued that she had a chronic pain condition that would remove her from the MIG. The applicant is now seeking to rely on three additional medical reports obtained between August and October 2020 after the hearing decision was released in June 2020. The respondent stated that:
The Applicant has not brought forth any evidence as to why these reports could not have been obtained or were unavailable at the time of the first hearing in January 2020, or at a potential reconsideration. It is the Respondent’s position that these reports were only obtained in order to re-litigate the MIG issue at a second hearing. It is submitted that the Applicant had an obligation to put her best foot forward at the first hearing and failed to do so.
17I find that the fresh evidence does not come to any new conclusions than the evidence that was put before Adjudicator Johal and nor does it show a material change in circumstances. My reasons are as follows.
The report from Dr. Nguyen, physiatrist, dated August 13, 2020.
18The applicant did not provide an explanation as to why this report was not available at the time of the first hearing. It’s the responsibility of the applicant to put forth the reasons and evidence as to why the new evidence wasn’t made available. Dr. Nguyen opined that the applicant is considered to have chronic pain syndrome, with multiple pain issues, pain related mental health and emotional sequelae ongoing since 2016. However, I am not persuaded by her opinion because she has relied heavily on the applicant’s self-reporting. Dr. Nguyen reviewed a right shoulder x-ray and cervical spine x-ray dated November 25, 2016. Other than that, Dr. Nguyen did not review any other medical documentation such as the family doctor’s clinical notes and records and the insurer examinations.
19While a formal diagnosis of chronic pain or a report from a specialist is not mandatory in order to be removed from the MIG, the applicant must demonstrate a functional impairment as a result of the pain. The applicant must provide an analysis as to how she meets the criteria under the AMA Guides. Dr. Nguyen’s opinion does not establish how the applicant meets the criteria.
20With respect to the applicant’s history of inflammatory arthritis, I find that Dr. Nguyen’s opinion does not establish that she meets the criteria in s. 18(2) of the Schedule.
21In my view, Dr. Nguyen’s report does not conclusively impeach the original results. This report does not indicate any changes in the applicant’s medical condition from the time of the first hearing, or a contrast with the findings indicated in the previous medical evidence. This report does not warrant waiving the principle of res judicata.
Report from Dr. Langis/Angela D’Unian dated October 26, 2020
22The applicant did not provide an explanation as to why this report was not available at the time of the first hearing. It’s the responsibility of the applicant to put forth the reasons and evidence as to why the new evidence wasn’t made available. Moreover, the applicant failed to provide submissions as to why this report would warrant waiving the principle of res judicata. Dr. Langis and Ms. D’Unian opined that the applicant is suffering from the following conditions:
F43.8 Other Specified Trauma and Stressor-Related Disorder (Adjustment-like disorder with prolonged duration of more than six months without a prolonged duration of stressor)
F45.10 Somatic Symptom Disorder (persistent with predominant pain, moderate)
F40.248 Specific Phobia, Situational, Moderate (passenger related).
23However, I am not persuaded by their opinion because they have relied heavily on the applicant’s self-reporting. They did not review any other medical documentation such as the family doctor’s clinical notes and records and the insurer examinations. The applicant has failed to explain the relevance of this report. Moreover, this report does not indicate any changes in the applicant’s medical condition from the time of the first hearing, or a contrast with the findings indicated in the previous medical evidence. This report does not warrant waiving the principle of res judicata.
Report from Dr. Luke Bui dated October 29, 2020
24The applicant did not provide an explanation as to why this report was not available at the time of the first hearing. It’s the responsibility of the applicant to put forth the reasons and evidence as to why the new evidence wasn’t made available. Dr. Bui opined that the applicant suffers from WAD III, left wrist arthritis, lumbar spondylosis, anxiety/depression and chronic back pain. Her prognosis was noted to be guarded due to the severity of her chronic pain symptoms.
25The respondent raised an issue regarding the orthopaedic assessment report completed by Dr. Bui as well as his qualifications. The applicant did not provide the curriculum vitae of Dr. Bui, which confirms that he is an orthopaedic surgeon. The respondent submitted Dr. Bui’s profile from the Thornhill Endoscopy Centre’s website. It is stated that, “as a minimally invasive surgeon, Dr. Bui has interests in stomach and colorectal cancer, laparoscopic anti-reflux procedures, and the medical and surgical management of obesity.” It does not mention that he is an orthopaedic surgeon. The evaluator’s credentials section in the report does not mention that he is an orthopaedic surgeon. Based on the evidence, I am not persuaded that Dr. Bui is an orthopaedic surgeon.
26As such, I am assigning less weight to his report because he is not qualified to be providing an opinion from an orthopaedic perspective. Moreover, this report does not indicate any changes in the applicant’s medical condition from the time of the first hearing, or a contrast with the findings indicated in the previous medical evidence. This report does not warrant waiving the principle of res judicata.
27Therefore, 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, her application is dismissed.
COSTS
28The respondent requested its costs on the basis that the MIG issue was already adjudicated at the first written hearing and the applicant did not request a reconsideration of that decision.
29In response to this, the applicant stated “no evidence of vexatious actions or frivolity was provided. As such, it is the applicant’s respectful contention that costs are not payable.”
30I find the respondent has not met the test set out in Rule 19. In the absence of reasons and particulars, I am unable to award costs to the respondent. Even if I am wrong in this regard, I find that the applicant’s decision to file this application is not sufficient to award costs. The test to find bad faith and unreasonable, frivolous, vexatious behavior is very high. I find that the applicant’s behaviour has not met this threshold.
CONCLUSION
31For the reason set out above, I find that:
i. The applicant is barred from seeking a determination that the injuries sustained in this motor vehicle accident were not subject to the treatment limits in the MIG.
ii. The respondent is not entitled to an order of costs.
iii. The application is dismissed.
Released: May 2, 2022
Tavlin Kaur
Adjudicator
Footnotes
- O. Reg 34/10 as amended.
- Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para 18 cited in 16-003909 v. Aviva Insurance Canada, 2017 CanLII 59502 (ON LAT) at paras14, 15.
- Toronto (City) v. CUPE Local 79, 2003 SCC 63, para. 52, cited in 17-006816 v Cooperators, 2018 CanLII 110950 para 5.