Tran v. Certas Home and Auto Insurance Company, 2023 CanLII 40137

Citation: Tran v. Certas Home and Auto Insurance Company, 2023 ONLAT 20-010400/AABS

Licence Appeal Tribunal File Number: 20-010400/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:

Quan Que Tran

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Tushar Tangri, Counsel

HEARD: By way of written submissions

OVERVIEW

1Quan Que Tran, the applicant, was involved in an automobile accident on February 11, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied benefits by the respondent, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $3,981.88 for psychological treatment recommended by Somatic Assessments and Treatment Clinic in a treatment plan (“OCF-18”) dated March 19, 2020?

ii. Is the applicant entitled to $13,312.81 for catastrophic assessments recommended by Somatic Assessments and Treatment Clinic in an OCF-18 dated July 31, 2020?

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

RESULT

3The applicant is not entitled to either of the two OCF-18s in dispute, nor interest.

ANALYSIS

The cost of psychological treatment is barred due to res judicata

4The OCF-18 for psychological treatment in the amount of $3,981.88 is barred pursuant to the doctrine of res judicata.

5This OCF-18 was found not to be reasonable and necessary by the Tribunal in a previous decision, Tribunal File 19-012308/AABS, released March 30, 2021.

6Briefly, res judicata is Latin for “the thing has been decided” and stands for the principle that once a claim or issue has been decided by a competent authority, such as the Tribunal, it cannot be re-heard if it involves the same parties and subject matter.

7I am satisfied the Tribunal has the ability to apply the principles of res judicata, which accord with the powers conferred upon the Tribunal to ensure procedural fairness and control its own process as per the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. This Supreme Court also ruled in Danyluk v. Ainsworth Technologies, 2001 SCC 44, that the doctrine extends to decisions made by administrative officers and tribunals.

8The Tribunal has held that four preconditions must be established before an adjudicator can determine whether to exercise their discretion to apply res judicata. See: 16-003909 v. Aviva Insurance Canada, CanLII 59502 at paragraphs 14, 15, Thomas v. Coseco Insurance Company, 2021 CanLII 21430, at paragraphs 10-11, and Dauti v. Aviva General Insurance, 2023 CanLII 2695 at paragraph 7. The factors are: the parties are the same in both actions, the prior claim must be within the jurisdiction of the Court/Tribunal, the prior adjudication must have been completed on the merits; and the prior decision must have been a final judgment.

9However, res judicata may be waived in the following circumstances: the first proceeding was tainted by fraud or dishonesty, or fresh, new evidence is submitted that was previously unavailable that would conclusively impeach the original results, or when fairness dictated that the original result should not be binding in the new context.

10I am satisfied the parties are the same, adjudication of this OCF-18 falls within the Tribunal’s jurisdiction pursuant to s. 280(1) of the Insurance Act, R.S.O 1990 c. I.8, the previous adjudication was on the merits, and was a final decision. None of the exceptions apply in this matter, and I have not been alerted to any fresh or new evidence that would lead me to re-examine the previous decision. As a result, I am persuaded this OCF-18 is barred by res judicata.

The catastrophic assessments are not reasonable or necessary

11I am not persuaded that catastrophic assessments in the amount of $13,312.81 are reasonable and necessary pursuant to the Schedule.

12To be entitled to a treatment and assessment plan under s. 15 and 16 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. The purpose of an assessment is to determine if a condition exists. To establish whether a treatment plan is reasonable and necessary, the applicant must point to objective evidence that there are grounds to suspect she has the condition for which she seeks the assessment.

13The OCF-18 for $13,312.81 was completed by Dr. S. Vachhrajani and dated July 31, 2020. It seeks funding for various assessments, including a psychology assessment, an in-home occupational therapy assessment, a neurology assessment, an overall assessment summary and file review assessment. The goals of the OCF-18 are listed as a catastrophic impairment assessment.

14The applicant submits this OCF-18 is reasonable and necessary, as the applicant is suffering unresolved physical and psychological injuries as a result of the subject accident. The applicant further submits that the medical records tendered consistently document her ongoing psychological impairments.

15The respondent submits the applicant has failed to demonstrate this OCF-18 is reasonable and necessary. The applicant has failed to demonstrate that her bilateral knee pain and subsequent knee replacements were caused or exacerbated by the accident. Similarly, the applicant has failed to establish she suffered any objective psychological impairment as a result of the accident. I agree with the respondent.

16The clinical notes and records of the applicant’s family physician, Dr. M. Hong demonstrate she suffered only soft-tissue injuries as a result of the accident. Prior to the accident the applicant suffered from bilateral knee osteoarthritis, left paralumbar tenderness, and sciatica between July and September 2017. There is no medical evidence that these conditions were exacerbated by the subject accident.

17Immediately following the accident, on February 12, 2018, it was noted the applicant was suffering from headaches, pain in the neck and shoulders, and restricted range of motion with pain in the lumbar spine. The applicant reported no accident-related knee pain during this visit. Dr. Hong also noted that she was potentially suffering from a mild concussion. However, no additional specialist referral was made regarding any post-concussive symptoms. On February 18, 2018 she was prescribed a tranquilizer – Ativan, Vimovo for osteoarthritis, and Baclofen, a muscle relaxant. Of these medications, only the Baclofen was linked to the applicant’s post-accident muscle aches.

18There is no evidence that the pre-accident osteoarthritis in the applicant’s knees was exacerbated by the accident. From Dr. Hong’s records, it is clear the applicant suffered from this condition in both knees in July 2017, or at least six-months prior to the subject accident. Eventually, the applicant had both knees replaced, the left in June 2020, and the right in January 2021.

19The medical records provided do not suggest the applicant suffered psychological impairment as a result of the accident. Rather, Dr. Hong’s records indicate that on February 18, 2018 the applicant’s psychological symptoms were tied to “situational life stressors”, the potential loss of her employment, and anxiety related to her knee replacement surgeries. By May 20, 2021 Dr. Hong noted her anxiety disorder was “stable”.

20I am not persuaded by the Psychological Assessment Report provided by Dr. S. McDowall, psychologist and M. Fang, registered psychotherapist dated March 19, 2020. I place no weight upon the diagnoses of major depressive disorder with anxious distress, post-traumatic stress disorder (chronic), and specific phobia (travel) for two reasons. First, these diagnoses do not accord with the applicant’s symptoms displayed in Dr. Hong’s clinical records between July 2017 and September 2021. Second, based on Dr. Hong’s comprehensive records, I cannot conclude the applicant’s psychological impairments are a direct result of the accident, as Dr. McDowall and Ms. Fang opine in this report. I also place no weight upon the Psychological Pre-Screen Report dated February 10, 2019 and appended to the OCF-18 dated February 20, 2019, which is not in dispute for this matter. Critically, it appears that both reports were based on the applicant’s self-reporting and not contemporaneous medical records.

21Conversely, I place weight upon the Psychiatry Assessment Insurer’s Examination Report provided by Dr. S. MacKenzie dated September 18, 2020. In preparation for this report, Dr. MacKenzie reviewed more than sixty relevant documents, including the records of the family physician, and diagnostic imaging. These findings most accord with Dr. Hong’s records, stating that the applicant displayed an anxious temperament linked to her finances and recovery from knee surgery. As a result, I place weight upon Dr. Mackenzie’s findings that the applicant displayed no objective psychological symptoms related to the accident that warranted treatment.

22Given the evidence tendered, I am not satisfied the applicant’s pre-existing conditions were exacerbated by the accident. From the medical records provided, it appears she suffered mainly soft-tissue physical injuries related to the accident, and an anxious disposition resulting from situational life stressors that are unrelated to the accident. In my view, neither are sufficient to warrant the seven assessments in the OCF-18 at issue.

23Otherwise, it remains unclear what accident-related impairments the applicant believes would result in a catastrophic impairment designation in order to justify the spate of assessments in dispute. The applicant has not provided any specific submissions related to the majority of the assessments sought. Given this conspicuous gap in the submissions, I am not satisfied the costs of these additional assessments are reasonable or necessary based on the medical evidence tendered. Accordingly, I find the applicant is not entitled to payment for these catastrophic assessments, as there is no reasonable basis to investigate whether the applicant is catastrophically impaired.

The applicant is not entitled to interest

24Given there are no outstanding or overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

25The application is dismissed, and I find that:

i. The claim for psychological treatment in the amount of $3,981.88 is barred by the doctrine of res judicata;

ii. The applicant is not entitled the cost of catastrophic impairment assessments in the amount of $13,312.81, nor interest.