Licence Appeal Tribunal File Number: 22-012220/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:
Kim Myers
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Eli Jakubovic, Counsel
For the Respondent: Matthew Owen, Counsel
HEARD: By way of written submissions
OVERVIEW
1Kim Myers, the applicant, was involved in an automobile accident on June 25, 2019, 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, Economical 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 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $2,200.00 for occupational therapy services proposed by Innovative Occupational Therapy in a treatment plan/OCF-18 (“plan”) submitted on September 2, 2022, and denied on September 3, 2022?
iii. Is the applicant entitled to $6,033.80 for occupational therapy services proposed by Innovative Occupational Therapy in a plan submitted on September 2, 2022, and denied on September 3, 2022?
iv. Is the applicant entitled to $2,460.00 for an orthopedic assessment proposed by Remark Medical in a plan submitted on November 24, 2022, and denied on November 27, 2022?
v. Is the applicant entitled to $4,836.68 for psychological treatment proposed by Kaplan and Levitt Psychologists in a plan submitted on January 18, 2023, and denied on January 18, 2023?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits.
RESULT
3The applicant is in the MIG because the doctrine of issue estoppel applies.
4As the applicant was found to be within the MIG in the decision of Adjudicator Kepman, she is not entitled to the disputed treatment plans.
5No award is payable.
6No interest is payable.
ANALYSIS
Applicability of the Minor injury Guideline
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
8An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The burden of proof lies with the applicant.
9The applicant argues that her injuries fall outside the MIG due to her pre-existing conditions and subsequent hip replacements. The respondent argues that the applicant’s claims have previously been adjudicated by the Tribunal and should be barred pursuant to the doctrine of res judicata. The respondent argues the doctrine of res judicata with reference to the decision of Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (“Danyluk”). The test in Danyluk deals with issue estoppel, which is a branch of the broader doctrine of res judicata.
The applicant is in the MIG because the doctrine of issue estoppel applies
10I find that the applicant is in the MIG because the doctrine of issue estoppel applies.
11This matter previously proceeded to a written hearing before Adjudicator Kepman, Tribunal File Number 20-008293, and a decision was released on August 25, 2022. That hearing dealt with the following issues: Minor Injury Guideline (“MIG”), a treatment plan, an award, and interest.
12In the first hearing, the Tribunal found that the applicant’s injuries were within the MIG and accordingly, did not address the disputed treatment plan. The Tribunal found that, although the applicant argued that she had a pre-existing medical condition that would prevent her from achieving maximal recovery if she were subject to the MIG, the applicant did not refer to the evidence she wished to rely on by tab or page number, as set out in the Case Conference Report and Order (“CCRO”). The Tribunal held that, since the applicant made no specific arguments that her injuries required removal from the MIG, nor referred to any specific evidence, the applicant had not met her onus. The application was dismissed. The applicant did not request a reconsideration or file an appeal.
13The doctrine of issue estoppel prevents a party from relitigating an issue that has already been decided. The Supreme Court of Canada in Toronto (City) v. CUPE Local 79, 2003 SCC 63 (“Toronto (City)”) at para 23 referred to Danyluk and set out that for issue estoppel to be successfully invoked, three preconditions must be met:
i. The issue must be the same as the one decided in the prior decision;
ii. The prior judicial decision must have been final; and
iii. The parties to both proceedings must be the same, or their privies.
14I find that the doctrine of issue estoppel applies to this claim. The applicant submits that the doctrine of res judicata is a discretionary remedy and is not applicable to this claim due to the specific nature of the Schedule.
15The applicant refers to other decisions of this Tribunal to support her position that entitlement under the Schedule is not static and that impairments resulting from accidents can change and get worse over time. Further, she submits that there is a difference between relitigating a previous entitlement to a benefit and bringing forward new evidence of impairments that would lift the applicant out of the MIG. In this case, I find that the issue of MIG has already been decided, and the “new” evidence submitted does not result in taking the applicant out of the MIG.
16I am satisfied that the preconditions for issue estoppel are engaged. The issue is the same as the one decided in the previous decision. The 2022 decision was a final judgment and the parties to both proceedings are the same. As such, I find that the applicant is in the MIG because the doctrine of issue estoppel applies.
Issue estoppel should not be waived
17I find that issue estoppel should not be waived in this case. The applicant argues that if res judicata does apply, it should be waived, since fresh new evidence, previously unavailable, conclusively impeaches the original result, and fairness dictates that the original result should not be binding in the new context.
18As set out by the Supreme Court of Canada in Toronto (City) at para 52, issue estoppel 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.
2The applicant does not argue the first proceeding was tainted by fraud or dishonesty.
There is no fresh, new evidence
19I find that there is no fresh, new evidence in this case.
20The applicant submits that the report of Dr. John Harrington, orthopedic surgeon, dated January 30, 2023, and Dr. Rafat Faraawi, rheumatologist, dated December 8, 2023, constitute new evidence that would impeach the original result. The applicant points out that at the time of the original hearing, she did not have an opinion from an orthopedic surgeon and/or a rheumatologist that would establish the link between the accident and her right hip arthroplasty surgery. She was only able to argue that her osteoarthritis was aggravated by the accident and triggered the right hip injury that led to surgery once she received the opinions of Dr. Harrington and Dr. Faraawi. The applicant submits that she should not be precluded from ever arguing the applicability of MIG because she did not obtain the expert reports prior to the original hearing.
21The respondent submits that the reports are not “fresh” evidence that was previously unavailable. They point out that the applicant’s original submissions were made in writing on or about June 3, 2021, more than three months after her right hip arthroplasty surgery. The applicant did not argue at that time that the osteoarthritis was caused by the accident or that she should be removed from the MIG on that basis. Further, the applicant could have produced clinical notes and records from her treating surgeon or her family doctor relating to the development of osteoarthritis in the right hip and the resultant surgery. The respondent also argues that the applicant could have obtained expert opinions with respect to her right hip condition or the need for surgery and relate it causally to the accident. The respondent submits that the applicant has changed tactics following an unfavourable result at the first hearing. She now seeks to relitigate the issue by generating expert reports and delivering clinical records that could have, and should have, been furnished in the first place.
22I find that the reports of Dr. Harrington and Dr. Faraawi are not “fresh evidence.” As pointed out by the respondent, the applicant had her right hip arthroplasty surgery more than three months before serving her submissions in the previous hearing. The applicant could have provided this evidence at the first hearing.
The reports of Dr. Harrington and Dr. Faraawi would not conclusively impeach the original results
23If I am wrong in my finding that the reports of Dr. Harrington and Dr. Faraawi are not fresh, new evidence, I find, in any event, that these reports would not conclusively impeach the original results because I find that they do not establish that the applicant has a pre-existing condition, documented by a medical practitioner, that would prevent maximal medical recovery under the MIG.
24The respondent argues that the report of Dr. Faraawi should be excluded as the applicant served it along with her submissions, contrary to the deadline set out in the CCRO and contrary to Rule 13.3 of the Common Rules of Practice and Procedure (October 2017). For completeness, I have considered the report in coming to my decision.
25Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. To do so, the applicant must provide compelling evidence meeting the following requirements:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.
26The standard for excluding an impairment based on pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG. It must be shown to prevent maximal recovery within the cap imposed by the MIG.
27In Dr. Harrington’s report, he concluded that the applicant sustained aggravation/acceleration of right hip osteoarthritis resulting in a successful total hip replacement arthroplasty surgery on February 19, 2021. In his report, Dr. Harrington provided the opinion that the applicant has reached maximum medical recovery following her injuries as a result of the accident. She has largely returned to her pre-accident activities and her pre-accident employment. Further, he recommended that she should continue in a self-directed home-based physical therapy program.
28Dr. Faraawi’s report is a paper review. He did not meet with or conduct a physical examination of the applicant. Based on this paper review, Dr. Faraawi is of the opinion that the applicant had osteoarthritis in the right hip prior to the accident, and because of the accident, she became severely symptomatic in the right hip and required a right hip replacement. Dr. Faraawi did not comment on whether the applicant’s pre-existing condition would prevent maximal recovery from the injury if she were subject to treatment within the MIG, as required by s. 18(2).
29I find that the new evidence that was tendered by the applicant has not established on a balance of probabilities that she should be removed from the MIG as a result of any pre-existing conditions because the evidence tendered does not establish that her condition would prevent maximal medical recovery from her accident related injuries if she remains subject to the MIG, but does establish that she has largely returned to her pre-accident activities and employment. As such, this evidence would not conclusively impeach the results in the original hearing.
Fairness does not dictate that the original result should not be binding in the new context
30I find that fairness does not dictate that the original result should not be binding in the new context.
31The applicant argues that at the time of the original hearing, she was restricted in her submissions based on the medical information available at the time. She submits that since she was unable to access funding from the respondent for treatment and assessments, she should not be punished for not having the funds to pay for the reports she is now relying upon. These medical reports were obtained for her Superior Court action, and the cost was covered by the defendant.
32The applicant argues that she was financially unable to obtain the reports of Dr. Harrington and Dr. Faraawi at the first hearing, however she does not provide me with any authority to make a finding that unfairness would ensue for this reason. As such, I am not persuaded that fairness dictates that the original result should not be binding in the new context, particularly since the new evidence does not meet the test required for removal from the MIG.
33In this case, I find that the issue of MIG has already been decided and that issue estoppel applies. Further, I am not exercising my discretion to waive the doctrine, since I find that there is no fresh, new evidence that would conclusively impeach the original results, nor do I find that fairness dictates that the original result should not be binding in the new context given that the evidence tendered does not meet the test. While I acknowledge that the MIG is a status and thus can be fluid, for the reasons I have provided this is not a case that requires revisiting.
34As the applicant was found to be within the MIG in the decision of Adjudicator Kepman and I find that the new evidence would not change that result here, it is not necessary to determine whether the disputed treatment plans are reasonable and necessary.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
Award
36The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since no benefits were unreasonably withheld, the applicant is not entitled to an award.
ORDER
37The applicant is in the MIG because the doctrine of issue estoppel applies.
38As the applicant was found to be within the MIG in the decision of Adjudicator Kepman, she is not entitled to the disputed treatment plans.
[39]
40No award is payable.
41No interest is payable.
42The application is dismissed.
Released: November 22, 2024
Laura Goulet
Adjudicator