Applicant Permitted To Reapply for Benefits as Substantial New Medical Information Now Exists - Applicant v Co-operators LAT 17-006816

January 29, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant v Co-operators LAT 17-006816

Date of Decision: November 17, 2017
Heard Before:  Adjudicator Cezary Paluch

DOES RES JUDICATA APPLY: Arbitrator determines that Res Judicata does not apply; applicant is not prevented from proceeding with new application to LAT

The applicant was injured in an automobile accident on February 20, 2015 and sought benefits pursuant to the SABs. On June 14, 2016 the applicant filed an Application to the LAT requesting various medical benefits and ongoing NEBs.

In Tribunal Decision released on January 12, 2017, Adjudicator Sewrattan found that the applicant’s alleged injuries fell within the definition of “minor injury” contained in the Schedule and dismissed the First Application on all issues.  The applicant appealed this decision to the Divisional Court. On June 9, 2017, the unanimous court dismissed the appeal holding that the adjudicator property applied the law to the facts of the case and chose an outcome that was within a range of possible acceptable outcomes.

The applicant than filed another Application to the LAT on October 11, 2017 with the sole issue being a treatment plan for psychological counselling in the amount of $4,678.40.

On October 25, 2017, Co-operators forwarded a letter to the Tribunal requesting that the Current Application be dismissed as it is frivolous and vexations as the main issue, that the applicant’s injuries are within the MIG has already been determined in a prior Application #16-000714. On November 1, 2017, Co-operators filed a Response, on a without prejudice basis, again reiterating their view the second Current Application is “Res Judicata” and should be dismissed.  With respect to the medical benefit, Co-operators denied the request based on the treatment plan exceeding the minor injury guideline of $3,500.00 which has already been exhausted (as the injuries continue to fall within the MIG) and therefore no further coverage is available.

On  October 30, 2017, the Tribunal issued Notice of a Written Hearing to the parties that a written hearing will be held on November 8, 2017, to determine Co-operators’s request to have the application dismissed based on res judicata and that the parties file any written submission on or before November 8, 2017.

On November 9, 2017, the applicant filed a reply to Co-operators’s motion requesting a declaration that the Current Application is not res judicata as the preconditions have not been met. Alternatively, even if the preconditions have been met, the doctrine of res judicata ought not to apply in the context of disputes for accident benefits.

RESULT:

The applicant is not prevented at this time with proceeding with the Current Application before the Tribunal.

ANALYSIS AND REASONS:

The Arbitrator considered the request to dismiss the application. He noted that the doctrine of res judicata operates to preclude a party from re-litigating issues (other than through an appellate process) which have been resolved by a final judgement on the merits by a court or tribunal of competent jurisdiction. In 16-003909 v Aviva Insurance Canada, the Tribunal appropriately explained the doctrine of res judicata at para. 15 as follows:

It is generally accepted that there are four prerequisites to be established before a finding of res judicata may be made:

1.   The two actions must involve the same parties;

2.   The claim sought to be asserted must have been within the prior court’s jurisdiction;

3.   Prior adjudication must have been on the merits; and

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

Although the parties are the same, the First Application was heard on its merits and was a final decision of the Tribunal and file was closed; the only claim in dispute appears different on its face.  In the Current Application, clearly under the heading “Issues on Dispute”, on page 3, the issue is listed as a “Medical Benefit” for psychological services in the amount of $4,678.40, submitted to the insurer on September 22, 2017. This issue was not part of the First Application or before Adjudicator Sewrattan. 

Co-operators has acknowledged that although it is a new treatment plan that is in dispute as part of the Current Application, the underlying sub-issue of the MIG, which is a prerequisite to the treatment plan and has already been decided by the Tribunal, still remains. Indeed, on page 3 of the Current Application, to the question: “Does the dispute involve whether or not the Claimant’s injuries fall within the Minor Injury Guideline (MIG)?” the applicant has checked off “yes” indicating that MIG remains in dispute.

The Arbitrator remained mindful of the Tribunal’s standard practice that once an application has been filed, a case conference is scheduled to allow the parties to   meet and identify the issues and exchange disclosure. At this point, Arbitrator Paluch noted that he cannot say for certain what the issues in dispute are. More importantly, for the purposes of this motion, nor can he state with any certainty whether the claim is the same, or is different, and therefore estopped by the doctrine of res judicata.

One of the purposes of a Case Conference is to identify issues in dispute and for the case conference adjudicator to issue an Order clearly setting out the issues in dispute as well as identifying any preliminary issues. It may be that once this matter gets to a case conference stage, and if compelling medical evidence is received, MIG may not be at issue any longer. The determination that the MIG applies to an applicant’s injuries is not a static one. An applicant’s condition may decline, additional injuries or conditions related to the accident may develop, etc.

The related issue is also whether there is new medical evidence that may take the applicant out of the MIG. The applicant submits there is “substantial new medical evidence which has arisen since the previous MIG decision was rendered.”  A letter from Co-operators dated October 3, 2017 states that “once we are in receipt of your updated family physician medical notes and records…we will review your file again and provided a determination on whether this OCF-18 is reasonable and necessary.” On the other hand, Co-operators submits that the applicant’s submission do not point to any new medical evidence since the matter was decided by the Tribunal.

The purpose of this motion is confined to the whether or not the principal of res judicata precludes the applicant from proceeding with his application, it is not to determine the substantive issue in dispute, which is the applicant’s entitlement to psychological treatment. As the Arbitrator has no medical evidence before him to determine the substantive issue in dispute and it is beyond the scope of this motion for me to do so. As such the motion is premature. In fairness to both parties the applicant is entitled to move forward with his application and the matter to proceed to a case conference.

Finally, the Arbitrator noted that although the Divisional Court clearly denied the applicant’s appeal it did not explicitly say that MIG did not apply. As such,  the court did not make a finding of fact on the MIG issue as Co-operators argues. Rather, as it was an administrative law decision, it considered the applicable standard of review of reasonableness and held that this standard was within the range of possible outcomes. 

Based on the above reasons, to deny the applicant at this early stage, the opportunity to proceed with the current Application would not be fair to the applicant. Especially given that a case conference has not yet taken place and the issues in dispute have not been formally identified and enumerated as part of an order. The current Application will proceed to a case conference.

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.