Dwayne Ramphal v. The Co-Operators Insurance Company, 2023 CanLII 42600

Citation: Ramphal v. The Co-Operators Insurance Company, 2023 ONLAT 20-007254/AABS

Licence Appeal Tribunal File Number: 20-007254/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:

Dwayne Ramphal

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Rajwant Bamel, Counsel

For the Respondent: Emily Schatzker, Counsel

HEARD: By way of written submissions

OVERVIEW

1Dwayne Ramphal, the applicant, was involved in an automobile accident on September 16, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, The Co-Operators 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. 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 the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $2,000.00 for an orthopaedic assessment, recommended by Toronto Healthcare Clinic in a treatment plan dated May 13, 2019?

iii. Is the applicant entitled to $2,000.00 for a chronic pain assessment recommended by Toronto Healthcare Clinic in a treatment plan dated September 12, 2020?

iv. Is the applicant entitled to $2,000.00 for a neurological assessment recommended by Toronto Healthcare Clinic in a treatment plan dated October 26, 2020?

v. Is the applicant entitled to a rehabilitation benefit in the amount of $11,734.48 for a chronic pain rehabilitation program recommended by Toronto Healthcare Clinic in a treatment plan dated October 24, 2020?

vi. Is the applicant entitled to a medical benefit in the amount of $2,000.00 for an MRI of the cervical spine requested by Toronto Healthcare Clinic in a treatment plan dated October 20, 2020?

vii. Is the applicant entitled to a medical benefit in the amount of $2,000.00 for an MRI of the lumbar spine requested by Toronto Healthcare Clinic in a treatment plan dated October 20, 2020?

viii. Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

x. Is the respondent entitled to costs pursuant to Rule 19 of The Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017) (“Common Rules”)?

RESULT

3The doctrine of res judicata applies to this application. The Tribunal previously determined the applicant’s injuries were predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

4The applicant has not provided evidence that was previously unavailable, and that would conclusively impeach the original results. Nor has the applicant demonstrated there was a deterioration or change in his previous condition.

5As a result, the applicant is not entitled to the disputed treatment or assessments, as they propose goods that fall beyond the MIG and the $3,500.00 funding limit on treatment.

6The applicant is not entitled to an award, nor interest.

7The respondent is not entitled to costs pursuant to Rule 19 of the Common Rules.

ANALYSIS

Res Judicata and Tribunal File 19-003441/AABS

8The respondent submits the doctrine of res judicata applies to this application, as the Tribunal previously determined that the applicant suffered minor injuries as a result of this accident which were treatable within the limits of the MIG. The Tribunal upheld the previous decision upon reconsideration.

9The applicant submits the application of res judicata equates to estoppel, an equitable remedy that the Tribunal does not have the authority to grant. Regardless, a determination of whether the applicant is within the MIG should be considered on the evidence tendered at this hearing and the totality of the circumstances.

10Briefly, 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 the same subject matter.

11Although not bound by the Tribunal’s decision in D.T. v. Wawanesa, 2019 CanLII 110124, I find the reasoning persuasive. I 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.

12The Tribunal has held that four preconditions must be established before an adjudicator may 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.

13I am satisfied these preconditions have been met and the doctrine of res judicata applies to this application. The first decision was dated November 26, 2020, and the Tribunal ruled the applicant suffered minor injuries and was within the treatment limits of the MIG. As a result, the applicant was not entitled to any of the 13 treatment plans in dispute, nor an award. In the reconsideration decision dated December 6, 2021, the Tribunal upheld the previous decision, and refused to admit additional evidence that could have been obtained prior to the initial hearing.

14However, 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. See: Toronto (City) v. CUPE Local 79, 2003 SCC 63 at paragraph 52.

Res judicata and new evidence

15I am not satisfied there is evidence that was previously unavailable and that would conclusively impeach the original results.

16The applicant submits that the Chronic Pain Consultation Report by Dr. D. Louvish dated October 8, 2020 and the MRI Report by Dr. W. Hsu dated December 11, 2020 is new evidence that demonstrates a pre-disposition for chronic pain and pre-existing back pain. He further submits a MIG determination is not static, and the previous holding should not be determinative of this matter, given these additional issues in dispute that were not previously before the Tribunal. The respondent submits that res judicata applies, as the applicant was already found to be within the treatment limits of the MIG and is not entitled to any additional treatment expenses. Further, the respondent submits the applicant has failed to demonstrate any documented change or new diagnosis to defeat res judicata. I agree with the respondent.

17I find that the report and MRI are not fresh new evidence that was previously unavailable that would warrant a rehearing of the issue. The Tribunal refused to admit these documents upon reconsideration in the initial hearing, 19-003441/AABS. The Tribunal determined this was evidence the applicant could have reasonably obtained prior to the hearing and refused to admit this additional evidence. In my view, permitting this evidence now, in consideration with the totality of evidence tendered related to the MIG issue, renders the previous reconsideration decision moot.

18Conspicuously absent in the evidence tendered are any updated clinical notes and records from the applicant’s family physician, or any treating physician that note any deterioration, or change in the applicant’s documented medical condition related to the accident.

19Dr. Louvish’s Chronic Pain Report is also based on previous documentation available at the previous proceeding. The most updated clinical note and record reviewed is the family physicians’ note from September 16, 2019. Dr. Louvish’s observations and diagnoses are directly rebutted by the applicant’s own testimony at the previous hearing. The transcript from March 17, 2020 revealed that the applicant did not suffer constant pain, sought symptom relief through the use of Tylenol or Advil, had returned to work and leisure activities including fishing and walking his dog. The applicant also noted he was independent in household chores, with pacing, and had resumed his social activities. Given the strength of the applicant’s testimony, and the disparity between the observations in this report, I place no weight upon Dr. Louvish’s diagnosis of chronic pain syndrome. Similarly, I have not been directed to any evidence demonstrating that the applicant’s condition deteriorated or changed following the initial hearing and subsequent reconsideration.

20Further, I am not satisfied the MRI Report by Dr. Hsu, chiropractor, dated December 11, 2020 is evidence of a pre-existing injury as the applicant now submits. Upon his review of the lumbar spine MRI, he identified a fatty marrow change in the sacroiliac joints and lumbar facet joints “suggestive of previous inflammatory process” with a joint disorder, and no finding of disc herniation. I place no weight upon this report, as there is no successive opinion that interprets these results, nor do they reflect a deterioration of any pre-existing medical condition supported by clinical notes and records. Instead, Dr. Louvish noted no history of accidents or musculoskeletal injuries, and the treatment plans submitted fail to list any prior or concurrent conditions that could affect potential treatment.

21In consideration of the evidence tendered, I am not satisfied these two documents represent new evidence that was previously unavailable and would conclusively impeach the original results to defeat res judicata. These documents are based on evidence available at the previous hearing. Additionally, the applicant has failed to adduce any evidence of a deterioration or change in medical condition since the previous hearing. Given the foregoing, res judicata would operate to bar this evidence in relation to the MIG. Otherwise, the applicant remains bound by the previous determination in Tribunal file 19-003441/AABS, and subject to treatment within the MIG.

22Alternatively, and for the reasons set out above, I place little weight upon these two additional documents. Given the strength of the applicant’s testimony at the previous hearing, and the lack of updated corroborating clinical notes and records, I cannot determine the applicant suffers from chronic pain, nor a pre-existing condition that would fall beyond the treatment limits of the MIG.

23As a result, I cannot conclude the applicant has established any accident-related impairment that would fall outside of the prescribed definition of a minor injury. The applicant remains within the treatment limits of the MIG.

The applicant is not entitled to the treatment plans in dispute

24Having found that the applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed treatment and assessment plans, as they propose goods and services that fall outside of the MIG and the $3,500.00 funding limit on treatment.

The applicant is not entitled to an award

25The applicant has failed to provide any substantive submissions with regard to his entitlement to an award. As a result, I am not persuaded the respondent unreasonably withheld or delayed payment of benefits to justify an award pursuant to s. 10 of Regulation 664. Thus, I find no award payable.

The applicant is not entitled to interest

26Given there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

The respondent is not entitled to costs

27The respondent’s request for costs is denied. Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Common Rules. The threshold for costs is high, and they are rarely awarded. Although the two additional pieces of evidence were previously excluded from the related proceedings, I am not prepared to penalize the applicant for filing a subsequent application regarding subsequent outstanding treatment plans. I do not find this conduct amounts to bad faith, nor rises to the threshold of costs pursuant to Rule 19.1. Given the totality of the circumstances, no costs shall be awarded.

ORDER

28The application is dismissed, and I find that:

i. The doctrine of res judicata applies to this application. The Tribunal previously determined the applicant’s injuries were minor and subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant has not provided evidence that was previously unavailable, and that would conclusively impeach the original results. Nor has the applicant demonstrated there was a deterioration or change in his previous condition;

iii. The applicant’s injuries remain predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

iv. The applicant is not entitled to the disputed treatment plans, as they propose goods that fall beyond the MIG and the $3,500.00 funding limit on treatment;

v. The applicant is not entitled to an award pursuant to Regulation 664;

vi. The applicant not entitled to interest pursuant to s. 51 of the Schedule;

vii. The respondent is not entitled to costs pursuant to Rule 19 of the Common Rules.