MIG Update – May 30, 2022

Res Judicata – 2nd Attempt at MIG Escape?

It may be too early to call Res Judicata relating to the MIG a trend at the LAT but, there certainly have been a few decisions in this regard of late.

This week a second run at the MIG was given consideration by the Tribunal as the application met the preconditions required for Res Judicata. However, the fresh evidence reviewed did not reveal a material change from the first decision. Why was the evidence not accepted?

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Factor: Res Judicata – 2nd Attempt at MIG Escape

In Johnson v Dominion (20-001056), the issue of the MIG had already been determined against Johnson in an earlier decision 19-001372 v Dominion. In this case, Johnson submitted fresh reports from a physiatrist, psychologist and general surgeon.

Dominion requested that the current application be dismissed based upon the doctrine of Res Judicata as the Tribunal had already determined that Johnson’s injuries fell within the MIG. Further, the Tribunal’s decision is final as Johnson did not pursue a reconsideration or appeal. Moreover, there is no new fresh evidence that was unavailable at the time of the first hearing that would conclusively impeach the results of the first hearing.

The Tribunal found that the four preconditions for Res Judicata are satisfied.

1. The parties are the same for both actions.
2. The prior claim was within the jurisdiction of the Tribunal.
3. The decision in the first appeal is based on the merits. The Tribunal had reviewed the Applicant’s medical records and submissions, and found that the Applicant sustained predominantly minor injuries. The Tribunal was of the view that the Applicant did not demonstrate that she suffers from chronic pain or that she has a pre-existing condition that would remove her from the MIG.
4. The decision in the first appeal is a final judgment. The Applicant did not file a reconsideration request, nor did she appeal the decision.
   

The Tribunal held:

• With respect to the alleged new evidence, there were no reasons why this new evidence was not available to present to the Tribunal at first instance.
• The fresh evidence does not come to any new conclusions than the evidence that was put before the Tribunal at first instance, nor does it show a material change in circumstances.
• The report from Dr. Nguyen, physiatrist, dated August 13, 2020 noted that Johnson has chronic pain syndrome. However, Dr. Nguyen relied heavily on Johnson’s self-reporting, and did not review any other medical documentation such as the family doctor’s CNRs or the IEs.
• Dr. Nguyen’s opinion does not establish how Johnson suffers a functional impairment as a result of pain that could remove her from the MIG.
  
• The report from Dr. Langis/Angela D’Unian dated October 26, 2020 diagnosed the Applicant with Other Specified Trauma and Stressor-Related Disorder, Somatic Symptom Disorder and Specific Phobia, Situational, Moderate (passenger related). Similarly however, the report relied heavily on Johnson’s self-reporting and did not indicate having reviewed any other medical documentation.
• The report from Dr. Luke Bui, general surgeon, dated October 29, 2020 noted that Johnson suffers from WAD III, left wrist arthritis, lumbar spondylosis, anxiety/depression and chronic back pain. Agreeing with Dominion, less weight was given to this report as Dr. Bui is not qualified to be providing an opinion from an orthopaedic perspective.
• Since none of the fresh evidence indicates any changes in Johnson’s medical condition from the time of the first hearing, or a contrast with the findings indicated in the previous medical evidence, the principle of Res Judicata was not waived. Johnson’s application was therefore dismissed.

If you Have Read This Far…

Our MIG Monday series discusses the multitude of factors to consider when evaluating a risk position on MIG cases. The Tribunal has ruled on the MIG in 24% of the decisions so far. Each case is nuanced, but with similar factors.

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