Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-004746/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:
Coleitha Peart
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Joshua Gautreau, Counsel
For the Respondent: Sonya Reid, Counsel
HEARD: In Writing
OVERVIEW
1Coleitha Peart, the applicant, was involved in an automobile accident on September 18, 2018, 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, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2The applicant filed her first application (19-011451/AABS) to determine whether her injuries fell within the Minor Injury Guideline ("MIG") as well as her entitlement to physiotherapy services and interest.
3On February 16, 2021, the Tribunal released a decision (the "2021 Decision") for the first application which concluded that:
i. 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.
ii. As a result, she is not entitled to the cost of physiotherapy services and interest, because she did not demonstrate that her accident-related impairments warrant treatment beyond the MIG.
4On April 22, 2022, the applicant filed this second application (22-004746/AABS) with the Tribunal. This second application includes the issue of whether the applicant's injuries fall within the MIG and the applicant's entitlement to psychological services and interest.
PRELIMINARY ISSUES
Non-Compliance with the Case Conference Report and Order
5Before proceeding to decide the preliminary issue and further issues in dispute, the applicant's submissions cite an email dated October 5, 2023, between both parties consenting to extend the page length of the submissions from 10 to 15 pages. The Case Conference Report and Order ("CCRO") dated March 2, 2023, limited party submissions to 10 pages. Both parties' submissions are 15 pages.
6Neither party filed a motion to extend the page limit in advance of the hearing. Furthermore, the email evidence suggests that the parties proceeded to consent over email to avoid having to bring a motion to the Tribunal.
7I find that both the applicant and the respondent's submissions are 15 pages, and both parties accordingly failed to comply with the CCRO. I find that non-compliance with a Tribunal order falls directly within the ambit of Rule 9.3 of the Licence Appeal Tribunal Rules. In my view, the actions of both parties demonstrate a disregard for the Tribunal's process, and I will not consider submissions after page 10.
8Parties forging an agreement in disregard with a CCRO is improper and any variations to an order require a motion. Furthermore, I would be remiss if I did not caution the parties that anytime there is non-compliance with a previous Order, parties risk exclusion of the submissions or evidence or both.
ISSUES
9The following issues are to be decided:
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 limit?
ii. Is the applicant entitled to $2,484.86 for psychological services proposed by Hydrohealth Evaluations, in a treatment plan dated July 14, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
10For the reasons that follow, 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 that would warrant a reconsideration;
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 plan; and
v. The applicant not entitled to interest pursuant to s. 51 of the Schedule;
ANALYSIS
Is the applicability of the Minor Injury Guideline ("MIG") res judicata?
11The 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.
12It 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:
i. The parties must be the same in both actions;
ii. The prior claim must be within the jurisdiction of the Tribunal;
iii. The prior adjudication must have been on the merits; and
iv. The prior decision must have been a final judgment.
13The 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, and the applicant did not seek reconsideration.
14In response, the applicant submits that since the February 16, 2021 decision there has been medical documentation procured which, had it been available to the Tribunal at the time of the initial decision, would have resulted in the applicant being taken out of the MIG. Relying on Dahi v. Certas Home and Auto Insurance Company, 2023 CanLII 32797 (ON LAT), the applicant denies that res judicata applies in this case, as the applicant is disputing a new treatment plan with new evidence in order to address funding limits.
15In my view, the issue of whether the applicant's injuries are within the MIG was determined by the Tribunal in the February 16, 2021 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. Further, in the February 16, 2021 decision, the Tribunal reviewed the applicant's medical records, evidence and submissions and found that the applicant sustained predominately minor injuries that are treatable within the MIG. The February 16, 2021 decision is a final judgement. The applicant did not file a reconsideration request, nor did she appeal the February 16, 2021 decision.
16However, 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 impact the original results, or when fairness dictates 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
17I am not satisfied there is evidence that was previously unavailable and would conclusively impact the original result.
18The applicant submits that the previously unavailable medical evidence confirms psychological injuries as a result of the accident. The applicant submits that the Psychological Assessment by Dr. Peter Waxer, psychologist, dated April 1, 2022, diagnosed the applicant with persistent somatic symptom disorder with predominant pain. The applicant also references the findings of Dr. Mohamed Asmal, OHIP provider family medicine, on January 31, 2022, and Dr. Pezhman Mehrabian, OHIP pain specialist, on September 23, 2022, and November 3, 2022, confirming that the applicant is experiencing pain.
19The 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 expenses. The respondent relies on the Psychological Assessment conducted and submitted to Dr. Tatiana Dumitrascu, psychologist, conducted in April 2019 for the February 16, 2021 hearing and re-assessment on June 20, 2022. Dr. Dumitrascu found in 2019 and maintained in 2022 that the applicant was not suffering from any accident-related psychological disorder or clinically significant symptoms. I am persuaded by the evidence of Dr. Dumitrascu who, having reviewed the entirety of the applicant's medical file in both 2019 and 2022 and arrived at consistent conclusions. Dr. Waxer's findings are inconsistent and reference symptoms not mentioned in any other medical records, including nightmares, and flashbacks of the accident. Lastly, I am not satisfied that the report of Dr. Asmal or Dr. Mehrabian is evidence of chronic pain as the applicant now submits as a result of the accident.
20In consideration of the evidence tendered, I am not satisfied that these reports represent new evidence that was previously unavailable and would conclusively impeach the original results to warrant consideration anew. The applicant remains bound by the previous decision in Tribunal file 19-011451/AABS, and subject to treatment within the MIG.
21Having found the applicant did not sustain a minor injury as a result of the accident, it follows that she is not entitled to the disputed treatment plan, as it proposes goods and services that fall outside of the MIG and the $3,500.00 funding limit on treatment.
INTEREST
22Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
ORDER
23The 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 plan; and
v. The applicant not entitled to interest pursuant to s. 51 of the Schedule;
Released: August 8, 2024
Monica Ciriello Vice-Chair