Licence Appeal Tribunal File Number: 20-011925/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:
Uyen-Nha Thi Phan
Applicant
and
Security National Insurance Company
Respondent
AMENDED PRELIMINARY ISSUE MOTION DECISION AND ORDER
VICE-CHAIR: D. Gregory Flude
APPEARANCES:
For the Applicant (Responding Party): Moninder Khattra, Counsel and Annie Detchantala, Paralegal
For the Respondent (Moving Party): Fahrid Mahdi and Elisabeth van Rensburg, Counsel
HEARD: By way of written submissions
REASONS FOR DECISION AND ORDER
BACKGROUND
1The applicant, Uyen-Nha Thi Phan, was involved in an automobile accident on November 15, 2016. She applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) to settle a dispute with the respondent, Security National Insurance Company (“Security National”), over her entitlement to benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). In a decision dated July 3, 2020, reported as U.P. v Security National Insurance Company, 2020 CanLII 45495 (ON LAT) (“1st Decision”), the Tribunal held that her impairments sustained as a result of the accident were predominantly minor, subject to the $3,500 limit in s. 18(1) of the Schedule, and that she had no pre-existing condition that would prevent her “from achieving maximal recovery from the minor injury if [she] is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline.” (See s. 18(2)). It denied her claim for six treatment and assessment plans (“OCF-18”) because the $3,500 limit was fully expended.
2Ms. Phan has submitted a further nine OCF-18s seeking a range of medical and rehabilitation benefits and assessments valued at $16,700.64. The respondent submits that Ms. Phan is subject to the now fully expended $3,500 treatment cap for predominantly minor injuries and, on the basis of the 1st Decision, brings this motion to dismiss Ms. Phan’s application on the grounds of res judicata and abuse of process.
3For reasons more fully expounded below, I find that the legal doctrine of res judicata does apply to proceedings under the Schedule, but it is not a complete bar to future proceedings. It was open to Ms. Phan to bring forward evidence of recent deterioration in her condition that resulted in her impairments no longer being the result of predominantly minor injuries. Her failure to lead such evidence in this motion is fatal to her current claim. The 1st Decision acts as a bar to Ms. Phan proceeding with this application and I dismiss it.
PRELIMINARY ISSUE
4The issue to be addressed at the preliminary hearing is as follows:
a. Is the applicant barred from proceeding with her appeal at the Tribunal because the claims in dispute herein have already been adjudicated and decided and so the doctrine of res judicata applies?
ANALYSIS
5In Kanama v Waterloo Insurance, 2022 CanLII 30677 (ON LAT) (“Kanama”), I was faced with substantially similar facts. Mr. Kanama’s injuries had been previously determined by the Tribunal and it was found that his injuries were predominantly minor, and he did not have a documented pre-existing condition that would prevent maximal recovery if he were subject to the minor injury coverage limit. The Tribunal decision was upheld on an application for reconsideration.
6After the release of the first decision, Mr. Kanama applied to Waterloo Insurance for payment for further benefits. Waterloo denied these claims on the basis that Mr. Kanama’s injuries were predominantly minor, and he had exhausted to $3,500 coverage limit set out in s. 18(1) of the Schedule. He applied to the Tribunal for dispute resolution of the further benefits claims. Waterloo took the position that this second application was res judicata and an abuse of process. After reviewing the various common law doctrines designed to bring finality to judicial and quasi-judicial proceeding, I held that Mr. Kanama was barred by the first decision because he could not point to a recent deterioration in his condition. In arriving at that decision, I recognized that, despite the fact that res judicata applied, the various common law finality doctrines do not mesh comfortably with claims under the Schedule. At paragraph [9] I stated:
My 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.
7In considering the principles set out in Kanama, they address Ms. Phan’s submission that res judicata does not apply because the OCF-18s adjudicated earlier differ from the current treatment plans in dispute. Ms. Phan misses the point. The threshold issue Ms. Phan must overcome before she can be successful in a claim for further treatment is the applicability of the $3,500 coverage limit in s. 18(1).
8The test for res judicata is set out in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 SCR 77 (“Toronto”):
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.
9There is little doubt that the four elements above apply to the current facts in the same manner as they did in Kanama. The parties are identical, since April 1, 2016 the Tribunal has had exclusive jurisdiction over entitlement to benefits under the Schedule, the prior decision was on the merits, and all rights of appeal of the 1st Decision have been exhausted such that it is a final judgment. As in Kanama, I find that res judicata applies to Ms. Phan’s current application. As in Kanama, there are findings from the earlier decision that are binding: she is not entitled to the earlier OCF-18s, and she does not have a pre-existing condition that prevent her from achieving maximal recovery if subject to the coverage limit. What, then, of recent deterioration?
10It is open to Ms. Phan to provide evidence that since the release of the 1st Decision her condition has deteriorated as a result of impairments sustained in the accident. The production deadline for the first hearing was extended by a motion brought by Ms. Phan to March 13, 2020, the written hearing was scheduled for May 11, 2020, and the 1st Decision was released to the parties on July 3, 2020. Both parties point to paragraph 52 of the Toronto decision where Arbour J. states:
There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: … (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results.
11Ms. Phan submits that she has submitted fresh new evidence that impugns the 1st Decision. I note that to consider such evidence it must have been previously unavailable and conclusively impeach the original finding. The previously unavailable branch of the test requires that such evidence post-dates the 1st Decision or could not have been obtained by due diligence. I note above that the final disclosure date for documents to be used at the hearing was March 13, 2020, so I am prepared to use that as the operable date without embarking on an enquiry of why the applicant would not bring a motion to add documents for the hearing after that date if they were conclusive in her favour.
12On the material before me, other than a number of sweeping statements in her submissions about new medical records, I can find only one record that satisfies the March 13, 2020 submission deadline. There is an entry by Ms. Phan’s family doctor, Dr. Bernie Tran, dated September 22, 2020, recording that Ms. Phan complained of back pain. Doctor Tran notes:
QA mechanical back pain, supportive msts, OTC Aleve/GI sfx, rte inb
300, insomnia recurrence, previously did v..ell on Effexor, asking for rePx, denies depression/sui/homicidality
There is nothing to tie this visit, four years post-accident, to impairments sustained in the accident.
13The bulk of Ms. Phan’s submissions revolve around an imaging report dated December 11, 2019, and apparently sent to Dr. Tran on December 13. This document was clearly available to Ms. Phan prior to the March 13, 2020 disclosure deadline, yet there is no explanation why it was not disclosed. Ms. Phan discussed the report with Dr. Tran on December 19, 2019, but there is no explanation why she did not ask for a copy. The report fails the “previously unavailable” branch of the test.
14Even were I to consider the ultrasound report, it does not support Ms. Phan’ position. Ms. Phan has provided me with a scholarly article on treatment for adhesive capsulitis, also known as frozen shoulder, yet there is no diagnosis in any of the records before me indicating Ms. Phan has or had adhesive capsulitis, or that the condition, first referred to three years post-accident was caused by the accident. The report in question finds a largely normal shoulder with no apparent cause for the reported shoulder pain. It raises the possibility of adhesive capsulitis as a line of enquiry for future investigation. It states:
Minimal degenerative changes in the glenohumeral joint. There is no significant abnormality of the rotator cuff on ultrasound. It is hard to explain decreased range of movement, although this raises the possibility of adhesive capsulitis.
15I have been pointed to no document that indicates the question of a possible frozen shoulder was further pursued. Indeed, six days after release of the ultrasound report, Dr. Tran simply advises Ms. Phan about shoulder stretches. Thus, even if this document can satisfy the disclosure timing test, it is far from conclusive about the issue in dispute, that is, the applicability of the $3,500 minor injury coverage limit.
16The last document provided to me by Ms. Phan is an OCF-18 dated February 18, 2020. The date is before the disclosure deadline of March 13, 2020. No explanation has been provided by Ms. Phan why it was not produced at the hearing. Looking at the substance of this OCF-18, it does not conclusively impeach the original finding; it supports it. The OCF-18 is authored by chiropractor, San Q. Bui. The form asks at Part 4 if Ms. Phan’s injuries are predominantly minor. Doctor Bui answers “No.” At Part 6 he lists the injuries as sprain and strain of the thoracic spine, sprain and strain of the lumbar spine, sprain and strain of the shoulder joint, and sprain and strain of the elbow. These maladies all fall squarely within the definition of minor injury in s. 3 of the Schedule which starts out by stating: ““minor injury” means one or more of a sprain, strain...”
CONCLUSION
17Security National has been successful in satisfying its onus on the motion to show that the doctrine of res judicata applies to this matter. Thereafter it was open to Ms. Phan to show that there has been a recent decline in her condition such that her impairments resulting from the accident have deteriorated to the point that her she longer falls within the coverage limit in s. 18(1) of the Schedule. She has led no evidence indicating a recent decline in her condition resulting from the accident on November 15, 2016.
ORDER
18For the reasons set out above, Ms. Phan’s application for statutory accident benefits is dismissed.
Released: October 13, 2022
__________________________
D. Gregory Flude
Vice-Chair