In Dahi v. Certas Home and Auto Insurance Company, 2023 CanLII 32797, the applicant was involved in an accident on January 29, 2015 and sought payment of accident benefits from the respondent.
The issues in dispute were whether the claimant was catastrophically impaired under Criterion 7, the cost of CAT assessments, and special award. At the hearing, the applicant also sought to add Criterion 8 to the LAT application.
The Tribunal decided numerous preliminary issues including: motion to strike surveillance, motion to strike the special award claim, whether the application was barred due to res judicata; and the impact of late service of records.
The motion to strike the respondent’s surveillance evidence was withdrawn by the applicant when it was determined that the respondent was calling the investigator as a witness at the hearing. The motion to strike the special award claim was also withdrawn when it was agreed that special award was withdrawn at the case conference.
The Tribunal held that res judicata does not apply if the treatment plan in dispute is different than the one previously decided by the LAT, regardless of how similar the two plans are to one another. The Tribunal also held that clinical notes and records can be admitted into evidence despite late service, if the applicant shows a reasonable effort to obtain them within the deadlines of the case conference order.
The applicant was ultimately found not satisfy the catastrophic (“CAT”) impairment criteria under Criterion 7, as her musculoskeletal issues were determined to be degenerative in nature. As a result, the cost of the CAT assessments were found not reasonable and necessary and not payable.
For the purposes of this blog post, we will focus primarily on the preliminary issues.
1. Preliminary Issues
a) Application of Res Judicata
The respondent insurer filed a motion to strike the issue of entitlement to a catastrophic (“CAT”) assessment from this proceeding arguing that the Tribunal previously decided that the applicant is not entitled to a CAT assessment and the applicant was attempting to re-litigate the same issue, with the same parties. The respondent argued that res judicata applied.
The applicant argued that the respondent issued a new denial for a new treatment plan, and therefore res judicata does not apply.
The Tribunal applied the 3-part test for res judicata and agreed with the applicant, finding that res judicata does not apply.
The three-part test for res judicata is well established from Toronto v CUPE Local 79, 2003 SCC 63, at paragraph 23. The issue must be the same as the one decided in the prior decision, the prior judicial decision must have been final, and the parties to both proceedings must be the same, or their privies. Where res judicata is found, it may still be waived where the first proceeding was tainted by fraud or dishonesty, where there is fresh, new evidence that was previously unavailable and would conclusively impeach the first result, or where fairness dictates that the first result should not be binding.
Application of Law to Facts
In Tribunal decision Y.D. v Certas Home and Auto Insurance Company, 2020 CanLII 37594, it was decided that the applicant was not entitled to the costs of a CAT assessment in the amount of $26,400. This was a final decision.
The parties from the first and second decision are the same. The current treatment plan in dispute is a CAT assessment in the amount of $13,440.00 but involved a different assessment than the one disputed in the first hearing.
The Tribunal held that, as there are two different treatment plans, res judicata does not apply, even if the treatment plan brings forward the same type of issue. The Tribunal states that two different denials were issued, on two different benefit claims.
b) Late Disclosure – Applicant’s Medical Records
The applicant also filed a motion seeking to admit late disclosed medical records into evidence.
The applicant submitted that the documents were relevant to the disputed issues and diligent efforts were made to obtain the documents. Unfortunately, the third parties did not provide the documents in a timely fashion. Counsel also advised that the clinical notes and records from the walk-in clinic were only recently brought to their attention by the applicant. The applicant argued that these relevant documents should be admitted into evidence, despite their late disclosure.
The respondent objected to the late disclosure of the clinical notes and records of the walk-in clinic, arguing that it was too late to call a witness, therefore, the respondent would be prejudiced if the walk-in clinic records were admitted.
The records were admitted. The Tribunal found the records to be relevant and that there was no clear indication that the applicant failed to make reasonable efforts to obtain them in a timely fashion.
The Tribunal held that the prejudicial impact on the respondent was minimal and can be reasonably offset in cross-examination of the applicant.
c) Motion – Criterion 8
The applicant submitted an OCF-19 dated April 23, 2021 to the respondent seeking a CAT determination under Criterion 7. The respondent found that the applicant’s injuries did not meet the criteria for a CAT impairment under Criterion 7.
Attached to the OCF-19 was a psychiatric evaluation that concluded that the applicant suffered a marked impairment in adaptation. As the accident occurred in 2015, this would have found the applicant catastrophically impaired under Criterion 8 based on the legislation at the time.
This psychiatric evaluation was overlooked by both the applicant and the respondent, until just prior to the hearing. The applicant sought to amend the LAT application to include a catastrophic determination under Criterion 8.
The respondent opposed the addition as they were not expecting to have to deal with Criterion 8 at the hearing, stating that the addition of same was highly prejudicial as they did not have any reports with respect to Criterion 8.
The Tribunal agreed with the respondent, stating that Criterion 8 was not in dispute as there was no proper denial. The Tribunal has jurisdiction to resolve “disputes” in respect of an insured person’s entitlement to benefits, or the amounts thereof, pursuant to s.280 of the Insurance Act. Without a denial, the Tribunal did not have jurisdiction to decide the issue. Criterion 8 was not added to the current LAT application.
The applicant sought payment for the costs of the CAT assessment, in the amount of $13,440.00.
The Tribunal found that the applicant was not catastrophically impaired and, therefore, the applicant was not entitled to the CAT assessments, or interest.
It was determined that the claimant was not catastrophically impaired under Criterion 7 as her musculoskeletal impairments were due to degenerative changes and not the accident.
Consequently, the Tribunal concluded that the applicant was not entitled to the costs of the CAT assessments because the evidence did not show that her musculoskeletal impairments were caused by the accident.
LAT hearings can include many preliminary issues that can determine the landscape of the hearing. If items cannot be agreed on before the hearing, they can be brought at the hearing.
In this case, the LAT made the following rulings:
- A new treatment plan and a new denial, regardless of how similar it is to the previous treatment plan / denial, is not res judicata, so it can be litigated again and potentially have a different conclusion.
- If it can be shown that reasonable efforts were made to obtain evidence within the timelines of the case conference order, the evidence may be admitted at the hearing despite minimal prejudice to the opposing party.
- If there is no proper denial, the Tribunal does not have jurisdiction to hear the issue.