After being injured in a car accident, individuals must commence an application to their auto insurer for Accident Benefits, which includes benefits for medical and rehabilitation treatment such as physiotherapy, psychological therapy, and chiropractic treatment.
The Accident Benefits insurer is required to fund treatments that are reasonable and necessary to an injured party's recovery. In some instances, the insurer may disagree that certain treatments are reasonable and necessary and will consequently deny funding for such treatment.
In the face of such a denial, experienced counsel will commence an application on behalf of the injured party to the License Appeal Tribunal (LAT) to challenge the insurer’s denial. The onus is on the Applicant (injured party) to present sufficient evidence proving that the impugned treatment plan is reasonable and necessary. Typically, such evidence will be presented in the form of the treating doctor’s clinical notes and records, as well as any reports obtained by the Applicant’s counsel/lawyer.
In Bhullar vs. TD General Insurance Company 2023 ONLAT 21-002847, Eddie Wiley of Hillier & Hillier successfully applied to the LAT to overturn an insurer’s denial of approximately $13,906.69 in treatment plans for chiropractic and physiotherapy.
The aforementioned decision is important in that it confirms the limited application of Res Judicata in Accident Benefits claims. The term Res Judicata is Latin and means “a thing that has already been decided.” This legal doctrine prevents parties from re-litigating matters that have already been decided by the relevant court or tribunal.
The doctrine of Res Judicata will apply to bar a claimant from proceeding with a claim or application where the following three requirements are met:
1. The same issue in dispute has already been decided;
2. A final decision of the issue has been rendered;
3. The parties involved in the decision are the same persons as those involved in the current dispute.
In Bhullar, the insurer attempted to argue that the subject treatment plans were similar to those that were subject to a previous LAT decision in 2020 which the LAT determined were not reasonable and necessary. Therefore, the applicant should not be allowed to challenge the denial of new treatment plans proposing the same types of treatment as those previously denied by the LAT in 2019.
The LAT disagreed and determined that Res Judicata will not apply to new and separate treatment plans no matter how similar they are in nature to previous treatment plans that were found to not be reasonable or necessary. As such, the first requirement of Res Judicata, that the same issue has already been decided, was not met. Essentially, a new treatment plan is a new and separate issue.
Res Judicata will have a limited application in Accident Benefits files, which is consistent with the practical reality that an individual’s medical needs arising from their car accident injuries will change over time. A treatment plan the LAT may not have found to be reasonable and necessary at one point may become so at a later date.
The decision is also important in emphasizing the need to provide expert witnesses with up-to-date records. The insurer failed to provide its experts with updated records from the Applicant’s family doctor, which resulted in the LAT giving little weight to the evidence of the insurer’s experts. The full decision can be viewed via the following link (Bhullar vs. TD General Insurance Company).
For more information regarding Accident Benefits, please see Hillier & Hillier’s article: “A Guide to Your Accident Benefits Claim.”
If you have been injured in an accident and require treatment, call Hillier & Hillier at 905 453 8636.
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