Citation: Khashi v. Travelers Insurance Company of Canada, 2024 ONLAT 21-014108/AABS

Licence Appeal Tribunal File Number: 21-014108/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:

Shoaib Khashi

Applicant

and

Travelers Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Ludmilla Jarda

APPEARANCES:

For the Applicant:

Kateryna Vlada, Counsel

For the Respondent:

Sara Baum, Counsel

HEARD:

By Written Submissions

OVERVIEW

1Shoaib Khashi (the “applicant”) was involved in an automobile accident on June 27, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Travelers Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2On May 23, 2019, the applicant filed an application (19-005457/AABS) to determine whether his injuries fell within the Minor Injury Guideline (“MIG”) as well as his entitlement to a psychological assessment, non-earner benefits, and interest.

3On December 21, 2020, the Tribunal released a decision (the “December 2020 decision”) for the first application which concluded that:

1. The applicant suffered a minor injury as defined by the Schedule and is subject to the MIG and the $3,500.00 funding limit on treatment. As a result, he is not entitled to the cost of a psychological assessment because it proposes services which are not considered in the MIG.

2. There is no evidence showing that the applicant suffered a complete inability to carry on a normal life. He is not entitled to non-earner benefits as a result.

4On November 16, 2021, the applicant filed a second application (21-014108/AABS) with the Tribunal. The second application included the issue of whether the applicant’s injuries fell within the MIG and the applicant’s entitlement to a chronic pain assessment and interest.

PRELIMINARY ISSUE

5The respondent raised the following preliminary issue:

1. Is the applicant precluded from applying for a determination on the issue of whether the applicant’s injuries fall within the MIG, seeking removal from the MIG limit, in light of a prior Tribunal decision dated December 21, 2020 which determined the applicant’s injuries to be within the MIG limit?

ISSUES

6The following issues are in dispute:

1. 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 MIG limit?

2. Is the applicant entitled to $2,629.50 for a chronic pain assessment, proposed in a treatment plan/OCF-18, proposed by HM Medical Network Ltd. submitted on April 21, 2021 and denied on May 11, 2021?

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

RESULT

7For the reasons that follow, I find that:

1. The applicant is barred from seeking a determination that the injuries he sustained in the accident are not subject to the treatment limit of the MIG.

2. The Tribunal has already determined that the applicant’s accident-related injuries are predominantly minor and treatable within the MIG limits, and the applicant has failed to tender any fresh, new evidence that was previously unavailable at the time of the previous hearing, and new evidence that would conclusively impeach the original result.

3. Considering that the applicant has exhausted his MIG limit, his claim for a chronic pain assessment and interest cannot succeed.

ANALYSIS

Is the applicability of the Minor Injury Guideline (“MIG”) res judicata?

8It is well established that the doctrine of res judicata operates to bring finality to legal proceedings as well as to prevent duplicate litigation, inconsistent decisions, undue costs, and inconclusive proceedings. It is generally accepted that four preconditions must be established before an adjudicator can determine whether to exercise their discretion to apply res judicata. The factors are:

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

2. The prior claim must be within the jurisdiction of the Tribunal;

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

4. The prior decision must have been a final judgment.

9The respondent submits that the four conditions for res judicata have been met: both applications involve the same parties; the prior claim was within the jurisdiction of the Tribunal; the prior adjudication on the MIG determination was on its merits; and the prior decision was a final judgment.

10In response, the applicant acknowledges that the parties in both applications are the same and that the prior claim was within the jurisdiction of the Tribunal. However, the applicant denies that res judicata applies in this case. The applicant states that MIG determinations are uniquely susceptible to change and that the initial determination can develop, leading to a re-evaluation of the severity of the injury. Further, the determination of the finality of a MIG determination is complex as a MIG classification can change overtime due to medical progress, new evidence, reassessment, or legislative amendments.

11In my view, the issue of whether the applicant’s injuries are within the MIG was determined by the Tribunal in the December 2020 decision and is res judicata. I find that the four preconditions for res judicata are satisfied. The parties are the same in both applications. The prior claim was within the jurisdiction of the Tribunal. The decision in the first application is based on the merits. In the December 2020 decision, the Tribunal reviewed the applicant’s medical records and submissions and found that the applicant sustained predominantly minor injuries which are treatable within the MIG. The December 2020 decision is a final judgment. The applicant did not file a reconsideration request, nor did she appeal the December 2020 decision.

Should res judicata be waived?

12Res judicata can be waived in the following circumstances:

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

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

3. When fairness dictates that the original results should not be binding in the new context.

13First, there is no evidence that the December 2020 hearing is tainted by fraud or dishonesty, and neither party made allegations to that effect.

14Next, it is well established that a MIG determination is not static, and it may be reassessed if and as accident-related injuries manifest themselves or deteriorate over time, even after an appeal decision has been made. However, when a MIG determination has been made by the Tribunal, in the absence of fresh, new evidence that was previously unavailable and new evidence that would conclusively impeach the original results, any subsequent claims for medical and rehabilitation benefits will be governed by the previous MIG determination. Further, medical assessments and opinions are not considered unavailable simply because they were not obtained before a hearing is conducted. The term “unavailable” in the context of applying res judicata means that the evidence could not have been obtained, not that it simply was not obtained.

15In his written hearing submissions, the applicant relies on the clinical notes and records (“CNRs”) of his former family physician, Dr. Theodor Schapira, his current family physician, Dr. Rahul Khanna, Platinum Medical, and Brampton Civic Hospital, a Disability Certificate dated July 30, 2016 completed by Dr. Nevin Wadehra, chiropractor, and an MRI of the lumbar spine dated February 9, 2019.

16The respondent submits that res judicata should not be waived as there is no fresh, new evidence that was previously unavailable that would conclusively impeach the original results. The respondent states that any medical records pre-dating January 2020 cannot be considered evidence that was previously unavailable at the first hearing as these records could reasonably have been obtained prior to the January 16, 2020 production exchange date. Further, the respondent argues that the applicant’s updated clinical notes and records fail to conclusively impeach the Tribunal’s conclusions from its December 2020 decision and notes that these records do not make explicit reference to the accident.

17In response, the applicant focuses his submissions on the applicability of res judicata on MIG determinations. The applicant argues that MIG determinations are not static, and they are subject to change based on medical progress, new medical evidence, re-assessment, and legislative changes and development of case law. Further, the applicant submits that the principles of justice and fairness demand that individuals have the opportunity to seek redress when their medical conditions change or when new evidence emerges.

Res judicata should not be waived

18For the reasons that follow, I agree with the respondent and find that res judicata should not be waived in the present case.

19I find that any fresh new evidence submitted by the applicant that was previously unavailable does not conclusively impeach the original results of the December 2020 decision’s MIG determination.

20In the December 2020 decision, the Tribunal was of the view that the applicant’s physical injuries fell within the MIG, and that there was no compelling evidence that the accident increased the applicant’s ongoing back pain or that his pre-existing back pain precluded his recovery from his accident-related injuries. Further, the applicant’s psychological symptoms were sequalae of his minor injuries, and they did not meet the threshold to warrant clinical intervention or removal from the MIG.

21In terms of new evidence, the applicant primarily relies on the CNRs of Dr. Khanna for the period of January 23, 2020 to January 23, 2023. A review of the applicant’s medical records for this period does not reveal any ongoing accident-related impairment. Rather, these records reveal that the applicant’s ongoing back pain is attributed to heavy lifting at work, and a subsequent motor vehicle accident that occurred on November 18, 2020. Further, there is no evidence that the applicant continues to complain of accident-related injuries, nor that the applicant’s accident-related injuries have deteriorated since the first hearing.

22Accordingly, I find that res judicata applies to the applicant’s MIG determination and that it should not be waived. The new evidence tendered by the applicant fails to conclusively impeach the determination reached by the Tribunal in December 2020. Therefore, I find that his injuries remain within the MIG and that he is subject to the treatment limit of the MIG.

23Having determined that the applicant remains within the MIG, it is unnecessary for me to consider the reasonable and necessary nature of the chronic pain assessment as it proposes goods and services outside the MIG and the $3,500.00 funding limit for a minor injury.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.

ORDER

25For the reasons outlined above, I find that:

1. The applicant is barred from seeking a determination that the injuries he sustained in the accident are not subject to the treatment limit of the MIG.

2. The Tribunal has already determined that the applicant’s accident-related injuries are predominantly minor and treatable within the MIG limits, and the applicant has failed to tender any fresh, new evidence that was previously unavailable at the time of the previous hearing, and new evidence that would conclusively impeach the original result.

3. Considering that the applicant has exhausted his MIG limit, his claim for a chronic pain assessment and interest cannot succeed.

26The application is dismissed.