Amalathasan v. Certas Home and Auto Insurance Company, 2023 CanLII 17707

Amalathasan v. Certas Home and Auto Insurance Company, 2023 CanLII 17707

Citation: Amalathasan v. Certas Home and Auto Insurance Company, 2023 ONLAT 21-006393/AABS

Licence Appeal Tribunal File Number: 21-006393/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:

Vasanthanayaki Amalathasan

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jessica Cavdar

APPEARANCES:

For the Applicant:

Vasanthanayaki Amalathasan, Applicant

Andrew Franzke, Counsel

For the Respondent:

Laura Bassett, Counsel

Jean-Claude Rioux, Counsel

Interpreter

Kandiah Pathmanathan, Tamil

Court Reporter:

Denise Gerginova

HEARD:

By Videoconference on November 2, 2022, With closing submissions in writing

BACKGROUND

1The applicant was injured in an accident on March 22, 2016, and sought various benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (''Schedule''). The respondent denied the benefits on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The respondent determined that the treatment plans were not reasonable and necessary. The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Is this dispute subject to res judicata?

2. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

3. If the applicant’s injuries are not considered to be predominantly minor,

i. Is the applicant entitled to a medical benefit in the amount $2,852.00 for chiropractic treatment, proposed by Scarborough Physio and Rehab in a treatment plan/OCF-18 denied on April 20, 2021?

ii. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for chronic pain assessment proposed by Scarborough Physio and Rehab in a treatment plan/OCF-18, denied on April 20, 2021?

4. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The issue of whether the applicant sustained predominantly minor injuries was already determined by the Tribunal’s 2020 Decision and is res judicata. The applicant remains in the MIG. The applicant is not entitled to payment for the treatment plans in dispute because, they were not reasonable and necessary. There is no interest. There is no award.

ANALYSIS

Procedural Background

4In the spring of 2019, the applicant appeared before the Tribunal to dispute the respondent’s denial of certain accident benefits arising out of the applicant’s March 22, 2016 accident. The Tribunal released its decision on March 2, 2020 [“the 2020 Decision”].²

5In its 2020 Decision, the Tribunal determined that, with regards to the applicant’s March 22, 2016 accident:

a. The applicant sustained predominantly minor injuries as defined by the Schedule;

b. The disputed treatment plan was not reasonable and necessary;

c. The applicant was not entitled to a non-earner benefit;

d. The respondent was not liable to pay a s. 10 award; and

e. No interest was due.³

6Following the release of the Tribunal’s 2020 Decision, the applicant submitted additional treatment plans which were denied by the respondent. The applicant subsequently applied to the Tribunal for resolution in the present case.

7This time, the applicant has once again sought to determine whether her injuries are predominantly minor. She has also applied to the Tribunal for adjudication of two new treatment plans, and seeks a s. 10 award and interest.

Res Judicata

8The respondent submits that the issue of whether the applicant is in the MIG was already determined by the Tribunal in the 2020 Decision and so res judicata applies here.

9The civil 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 discretion to apply res judicata, as set out by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc.:⁴

a. The parties must be the same in both actions;

b. The prior claim must be within the jurisdiction of the Court/Tribunal;

c. The prior adjudication must have been on the merits; and

d. The prior decision must have been a final judgement.

10I find that the issue of whether the applicant’s injuries are predominantly minor, and therefore subject to treatment within the MIG, was determined by the Tribunal’s 2020 Decision, and is therefore res judicata for the following reasons.

11I find that the Danyluk factors are met in this instance:

a. The applicant and respondent in the 2020 Decision and the instant case are the same;

b. The prior claim (namely, the 2020 Decision) is within the Tribunal’s jurisdiction;

c. The 2020 Decision was on the merits; and

d. The 2020 Decision was a final judgment. Notably, the applicant chose not to seek reconsideration, appeal, or judicial review of the 2020 Decision.

Waiver of Res Judicata

12The Tribunal may use its discretion to waive res judicata when the circumstances dictate that re-litigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. For example:

a. The first proceeding is tainted by fraud or dishonesty;

b. Fresh, new, evidence is submitted that was previously unavailable that would conclusively impeach the original results; or

13When fairness dictates that the original result should not be binding in the new context.⁵ I decline to waive res judicata regarding the MIG determination because the Toronto (City) v. CUPE Local 79 conditions have not been met in this case.

14First, there is no evidence that the 2020 Decision is tainted by fraud or dishonesty.

15Next, any fresh, new, evidence submitted by the applicant that was previously unavailable does not conclusively impeach the original results of the 2020 Decision’s MIG determination.

16For res judicata to be waived in this instance, the applicant must raise evidence to prove that new impairments have arisen since May 9, 2019 that stemmed from her March 22, 2016 accident. She did not do so.

17While I agree with the applicant that a MIG determination is not necessarily always static because of the possibility that an applicant’s condition may decline over time, the evidence raised before me at this hearing does not meet the burden of proving that the applicant should be removed from the MIG.

18In other words, I find that the original result of the 2020 Decision’s MIG determination was not impeached by evidence raised by the applicant at the instant hearing. Res judicata therefore applies to the MIG determination as decided in the Tribunal’s 2020 Decision.

19One way that the applicant could have proven that she no longer belongs in the MIG would be for the applicant to have demonstrated, on a balance of probabilities, that she not only developed a psychological diagnosis and/or chronic pain with functional impairment arising from her March 22, 2016 car accident, but also that either or both of these ailments only manifested between May 9, 2019 (the final day of the 2020 Decision’s oral hearing, which was dispositive of the MIG issue) and the present.

20In its 2020 Decision, the Tribunal found that the applicant did not have chronic pain arising from the March 22, 2016 accident. The doctrine of res judicata prevents a finding that the applicant did, in fact, have chronic pain caused by the March 22, 2016 accident on or before May 9, 2019 (the last day of the 2020 Decision’s oral hearing).

21As for chronic pain post-May 9, 2019, the applicant did not adduce sufficient evidence at the instant hearing to prove that she began suffering from chronic pain stemming from her March 22, 2016 accident on or after May 9, 2019, which was the last day of the 2020 Decision’s oral hearing. Without such change in circumstances, it follows that the 2020 Decision’s determination about the chronic pain assessment remained unimpeached; and fairness does not dictate that the original result should not be binding in the new context.

22Accordingly, for these reasons, I find the applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG or that res judicata of the MIG issue should be waived.

Is $2,852.00 for chiropractic treatment reasonable and necessary?

23To receive payment for a treatment and assessment plan under s. 15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and how the overall costs of achieving them are reasonable.

24I find the applicant has not demonstrated that the OCF-18 for chiropractic services from Scarborough Physio and Rehab Clinic is reasonable and necessary.

25But for the OCF-18 itself, the applicant provided no records from Scarborough Physio and Rehab Clinic. The treatment providers from that clinic did not testify at the hearing. Previous Tribunal decisions have consistently held that an OCF-18 by itself does not amount to evidence sufficient to discharge the applicant’s burden of proving that the disputed treatment or assessment is reasonable and necessary, as that would be tautological. I agree with that reasoning and apply it here.

26To support her claim for the chiropractic treatment plan, the applicant relies upon the clinical notes and records of her family doctors. The applicant’s family doctors were not called by the applicant to testify at the hearing, nor did they appear despite being summonsed by the respondent.

27While there is fleeting mention of chronic back pain and a “prescription” for physiotherapy in one of her family doctor’s notes from April 11, 2021, there was no other supporting evidence to demonstrate that the chiropractic and massage treatment is reasonable and necessary.

28The applicant had an ultrasound of her neck dated April 20, 2021. The applicant testified that she did not remember whether or not she told her family doctor that the applicant had nodules in her neck, which could be the reason for the applicant’s neck pain. The family doctor’s records from April 24, 2021 describe thyroid nodules.

29The applicant’s oral testimony and exhibits tendered at the videoconference hearing are insufficient to demonstrate that this chiropractic and massage treatment is reasonable and necessary to treat her accident-related injuries. Accordingly, the OCF-18 is not payable.

Is $2,200.00 for a chronic pain assessment reasonable and necessary?

30The applicant relied upon the same evidence described above to support her claim that the chronic pain assessment is reasonable and necessary. For the same reasons set out above, I find the applicant has not demonstrated that the applicant’s oral testimony and exhibits tendered at the videoconference hearing are insufficient to demonstrate that this chronic pain assessment is reasonable and necessary to treat her accident-related injuries. Accordingly, this plan is not payable.

CONCLUSION

31The applicant has not demonstrated that their accident-related impairments warrant removal from the MIG. The issue of whether the applicant sustained predominantly minor injuries was determined by the Tribunal’s 2020 Decision and is res judicata. The applicant remains in the MIG. The applicant is not entitled to payment for the treatment plans in dispute because they were not reasonable and necessary. Since no benefits are owing, the applicant is not entitled to interest or an award.

32The application is dismissed.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2A.V. v. Certas Home and Auto Insurance Company, 2020 CanLII 19562.
3. 3Ibid.
4. 4Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 18.
5. 5Toronto (City) v. CUPE Local 79, 2003 SCC 63 at para. 52.