Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-008079/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:
Anthony Khatchadourian
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Camille Narine-Ramrattan, Paralegal
For the Respondent:
Julianne Brimfield, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Anthony Khatchadourian (the “applicant”), was involved in an automobile accident on May 8, 2020 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 Wawanesa Mutual Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is:
i. Is the applicant barred from proceeding to a hearing by the doctrine of res judicata because the issue of applicability of the Minor Injury Guideline (“MIG”) was already decided in prior LAT decision of 21-008484/AABS?
RESULT
3The applicant was found to be within the MIG in the previous decision dated January 19, 2024, and he is barred from proceeding with his application before the Tribunal because the doctrine of res judicata applies.
ANALYSIS
Background
4The applicant was involved in an accident on May 8, 2020, and filed an application with the Tribunal bearing file no. 21-008484/AABS. In a decision dated January 19, 2024, the Tribunal determined that the applicant remained within the MIG, and that he was not entitled to the treatment plans for physiotherapy services, as the MIG limits had been nearly exhausted. The applicant did not file a request for reconsideration of the decision or file an appeal.
5The applicant subsequently submitted additional treatment plans, which were denied by the respondent pursuant to the previous decision. The applicant then applied to the Tribunal for resolution in the present case. This second application again seeks a determination that the applicant be removed from the MIG, and is entitled to payment for five new treatment plans, an award and interest.
6At the case conference held on November 14, 2024, the respondent raised the preliminary issue that the doctrine of res judicata applies to the current application regarding the issue of whether the applicant’s injuries fall under the MIG.
Preliminary Issue: Res Judicata and Tribunal File 21-008484/AABS
7I find that that the doctrine of res judicata applies.
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. As noted above, the applicant did not file a reconsideration of the decision or an appeal.
9The applicant submits that although res judicata applies to his claim for benefits beyond the MIG limit, he has provided substantial new medical evidence in support of his accident-related injuries to warrant removal from the MIG. In addition, the applicant submits that the previous decision did not address the new treatment plans in dispute, and the only issue being re-litigated is whether his injuries fall under the MIG. However, if the applicant’s injuries are within the MIG, it is not necessary to consider the disputed treatment plans.
10The doctrine of res judicata prevents a party from relitigating an issue that has already been decided. Three preconditions must be established before the adjudicator can determine whether to exercise discretion to apply the doctrine of res judicata, or more specifically issue estoppel, as set out by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para.25:
i. that the same question has been decided;
ii. that the judicial decision which is said to create the estoppel was final; and,
iii. that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
11I am satisfied that these preconditions have been met and that the doctrine of res judicata applies to this application. I find that the parties are the same as in the previous application. The claim was within the Tribunal’s jurisdiction. The prior decision was made on the merits and found that the applicant suffered minor injuries and was within the treatment limits of the MIG. Although the applicant argues he has new medical evidence, I find that the issue of MIG has already been decided. The applicant has not sought a reconsideration or appeal of the 2024 decision.
12In sum, I am satisfied that the three factors set out in Danyluk are engaged. The parties are the same in both actions. The prior claim is within the Tribunal’s jurisdiction. The 2024 decision was on the merits, and it was a final judgment.
13However, the applicant further argues that if it applies, res judicata should be waived in this instance. I will now turn to consideration of this argument.
Waiver of Res Judicata and new evidence
14I find that the applicant has not established that res judicata should 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.
15As set out in Toronto (City) v. CUPE Local 79, 2003 SCC 63 at para. 52, res judicata can be waived in the following situations:
a) The first proceeding is tainted by fraud or dishonesty;
b) Fresh, new, evidence is submitted that was previously unavailable that would conclusively impeach the original results; or
c) When fairness dictates that the original result should not be binding in the new context.
16The applicant does not argue the first proceeding was tainted by fraud or dishonesty.
There is no fresh, new evidence
17I find that there is no fresh, new evidence in this case.
18The applicant submits that a chronic pain report dated October 22, 2024, by Dr. Daniel Yim, general practitioner, and a psychological report dated August 30, 2024, by Dr. Leon Steiner, psychologist, constitute new evidence that would impeach the original result. The applicant also relies on the clinical notes and records (“CNRs”) of Fairview Physiotherapy and Rehabilitation Centre and the CNRs of Dr. Sangitha Sritharan, his new family physician as of June 29, 2023, which include the records of North York General Hospital and the CNRs of Dr. Ibrahim Hany, the applicant’s former family physician.
19The applicant argues that he has developed a psychological impairment and chronic pain over time as a result of the accident, which has affected his ability to work. The applicant refers to his MRI of the lumbar spine report dated September 14, 2020, which reveals the presence of degenerative changes and stenosis. However, Dr. Hany diagnosed the applicant with chronic low back pain before the accident. In addition, Dr. Hany completed a work limitation form dated November 1, 2019, on behalf of the applicant for lifting restrictions with no repetitive back movements.
20The applicant argues that Dr. Sritharan provided the applicant with a medical note which indicates that the applicant was unable to work from October 10, 2023 to October 18, 2023 for medical reasons. However, the CNR’s of Dr. Sritharan indicate that the applicant requested time off work because he has a heavy job, and he injured his back lifting heavy boxes at home. Dr. Sritharan does not indicate the medical reasons for the applicant’s time off work in October 2023 were accident related.
21The applicant also argues that Dr. Steiner and Dr. Yim both recommend that the applicant participate in a multi-disciplinary chronic pain program. The applicant submits that Dr. Steiner concludes that the applicant is unable to return to his pre-accident employment duties after the accident, and Dr. Yim reached his conclusions after reviewing the applicant’s reports and imaging results.
22The 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. The respondent further submits that the applicant has not produced new evidence that was unavailable at the time of the previous decision in support of a pre-existing condition, chronic pain or psychological impairment to warrant his removal from the MIG. The respondent argues that although the applicant obtained reports after the date of the previous decision, he has not provided a reason why this new evidence was unavailable at the time of the previous decision.
23The respondent submits that Dr. Steiner’s report is unreliable since the applicant’s self reports are not corroborated by other medical evidence. The respondent submits that Dr. Yim does not explain how the applicant meets the criteria for chronic pain under the American Medical Association’s Guides as a result of the accident. The respondent further submits that neither Dr. Steiner or Dr. Yim refer to new medical evidence, which was not available at the time of the previous decision, in making their diagnoses of chronic conditions and psychological impairments over four years after the accident.
24I find that the new evidence submitted by the applicant does not impeach the original results.
25I find that the applicant reported to Dr. Steiner that his emotional problems and cognitive issues began less than six months after the accident. I find that the applicant’s psychological symptoms were known to the applicant at the time of the previous decision. The applicant had the opportunity to address his psychological condition at the first hearing.
26I find that Dr. Yim reviewed the MRI of the applicant’s lumbar spine dated September 18, 2020, which reveals degenerative disc disease (“DDD”), with stenosis. Dr. Yim also reviewed an MRI of the applicant’s left shoulder dated September 18, 2020, which indicates the presence of supraspinatus tendinopathy. I find that both MRI results are not fresh evidence that were previously unavailable that would warrant a rehearing of the issue.
27I find that Dr. Yim reviewed a consultation report dated June 17, 2021, by Dr. Kevin Grant, orthopaedic surgeon, which indicates that the applicant’s radiculopathy to his left leg started before the accident, but he does not mention the applicant’s pre-existing chronic back pain. Further, Dr. Yim indicates that he reviewed the consultation report dated August 22, 2018, by Dr. Christine Young, orthopaedic surgeon at Scarborough Health Network, which describes the applicant’s first left shoulder dislocation while playing basketball, but he does not discuss the applicant’s recurrent left shoulder dislocations, which are not accident related.
28I am not satisfied that the additional reports of Dr. Yim, Dr. Steiner or the CNRs of Dr. Sritharan are sufficient to represent new evidence that was previously unavailable and would conclusively impeach the original results to waive res judicata. These documents do not adduce any evidence of a deterioration or change in the applicant’s medical condition since the previous hearing. Given the foregoing, res judicata would operate to bar this evidence in relation to the MIG. Consequently, the applicant remains bound by the previous determination in Tribunal file 21-008484/AABS, and is subject to treatment within the MIG.
29I find that the applicant is barred by operation of the doctrine of res judicata from re-litigating the issue of whether his accident -related injuries fall under the MIG and that doctrine should not be waived in the circumstances.
ORDER
30I find that the applicant is barred from proceeding with his application pursuant to the doctrine of res judicata.
31The application is dismissed and the substantive hearing is vacated.
Released: May 1, 2025
___________________________
Lisa Holland
Adjudicator