Volume. 8 Issue. 37 – October 30, 2024
This week’s case involves the Court remitting an “unsafe” decision back to the Tribunal for a rehearing. The Court found that the Applicant, on substantial and important issues, was entitled to more than the summary, conclusory reasons provided by the LAT.
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Court Remits “Unsafe” Decision Back for Rehearing
Rehearing Ordered for “Unsafe” Decision – Injured in a March 2017, the Appellant Luluquisin was deemed CAT in February 2020 by Aviva. Luluquisin initiated a proceeding with the Tribunal, in Luluquisin v. Aviva, seeking entitlement to 15 issues in dispute, the first being entitlement to attendant care benefits (ACB). Having been denied entitlement to any of the issues in a decision by the Tribunal, Luluquisin raised numerous grounds of appeal, however the Court did not find it necessary to address all of the grounds alleged. Rather, the Court found that in “respect to one important issue, the Vice Chair erred in law and applied the wrong test. The reasons, taken as a whole, are brief and frequently conclusory.”
The Court found that “Such an approach may be appropriate for some issues, when important issues have been addressed properly: what is required will depend on the importance of the issue, its complexity, and the extent to which the reasons for decision on a minor issue have already been addressed elsewhere in the decision.” However, in this matter, “the errors in analysis and unduly conclusory reasoning on an important issue serve to undermine confidence in the balance of the decision. Therefore, in the result, I would set aside the impugned decision and remit the entire matter back for a fresh hearing before a differently constituted tribunal.”
The Court found that “The general statement of principles by the Vice-Chair – that claimed benefits must be “reasonable and necessary” and that the claimant bears the onus of establishing this point on a balance of probabilities – discloses no error in principle. However, it is a preliminary statement of general principle and not the kind of detailed legal analysis one might expect in regard to a substantial claim.” The Court went on to note that the “Vice-Chair then addressed fourteen issues briefly, in reasons ranging in length from one to five paragraphs (most being two or three short paragraphs long).” For the claim regarding ACB, the following rationale was provided “The onus is on the applicant to prove entitlement to ACB and that the amount of the ACB claimed is reasonable and necessary pursuant to s. 19 on a balance of probabilities. The applicant has not established with medical evidence that the ACB in the amount of $6,000.00 per month from April 19, 2020 to date and ongoing, is reasonable and necessary.”
While “not entirely clear”, the Court read the reasoning as indicating “that the claimed services are not established as “reasonable and necessary” because (a) Aviva assessed the necessary services at $1,029.42 per month; (b) the claimant “failed” to attend an independent medical examination on September 16, 2021, and (c) one of the claimant’s service providers did not respond to a request for additional information from Aviva. The LAT did find that the Applicant “has not established [the claim] with medical evidence” but this is a conclusion without analysis of the evidence that was provided by the Applicant.”
The Court found that “No explanation is provided – let alone any analysis –to justify drawing conclusions against the claimant because of the “failure” to attend a medical examination or for the “failure” of one of the claimant’s service providers to provide additional information to Aviva. No description is provided – let alone an analysis – of the evidence provided by Mr Luluquisin in support of the claim for attendant care benefits.” Rather, “in a conclusory manner, the LAT has drawn an adverse inference against Mr Luluquisin to preclude all aspects of his claim for attendant care benefits other than those previously admitted by the insurer. This inference was apparently so strong that the LAT did not feel it necessary to state and apply the law concerning the test for “reasonable and necessary”, or to review the evidence Mr Luluquisin did provide to substantiate that his claim was for services that are “reasonable and necessary…”
The Court noted that “the claim for attendant care benefits was substantial and important – $6,000 per month. There was a substantial record in respect to this claim. With respect, a claimant is entitled to more than the summary, conclusory reasons provided by the LAT on this issue in this case.” Further, the “Vice-Chair moved from an uncontested finding that a claimant did not attend an insurer medical examination to a conclusion that this was a “failure” and was unreasonable. She then concluded that the unreasonable failure precludes a substantial claim. All that was without reference to the statutory scheme, without justification of the factual finding of unreasonableness, and without justification of the draconian consequence of these findings.”
Ultimately, the Court found that the “decision respecting attendant care benefits is inadequate, on its face, and must be returned for a fresh hearing.” As for the remaining issues, while summary reasons are under certain circumstances appropriate, in the within matter “ where the first central issue in the case has been disposed of summarily, without proper and complete analysis, this may taint the balance of the reasons…I consider the entire decision unsafe in light of the way in which the important issue of attendant care benefits was addressed, and I would quash the entire decision and remit it back for a fresh hearing before a different adjudicator.” Costs in the amount of $5,000 were payable to Luluquisin.
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