RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice-Chair
Licence Appeal Tribunal Tribunal File Number: 20-010381/AABS
Case Name: Rell Nowell Luluquisin v. Aviva Insurance Company of Canada and Intact Insurance Company of Canada
Written Submissions by:
For the Applicant: Mireille Dahab and Avneet Kaur, Counsel
For the Respondents: Patrick M. Baker, Counsel for Aviva Insurance Company of Canada and Jason H. Goodman, Counsel for Intact Insurance Company of Canada
BACKGROUND
1This request for reconsideration was filed by Rell Nowell Luluquisin (“applicant”). It arises out of a decision dated March 2, 2022 (“Decision”) in which I found the applicant is entitled to $1,029.42 per month for attendant care benefits (“ACB”) for the period claimed, if not already paid, entitled to $2,014.24 for chiropractic treatment, if incurred and if not already paid, and interest from the respondent Intact Insurance Company (“respondent Intact”). The applicant’s remaining claims were dismissed including the award claimed against the respondent Aviva Insurance Company (“respondent Aviva”).
2The applicant asks that the Decision be “overturned” or a new hearing ordered.
3The respondent Intact requests that the reconsideration be denied on the basis that no error was made and the request for reconsideration should be seen as an attempt to re-litigate the issues in dispute.
4The respondent Aviva requests that the reconsideration be dismissed on the basis that the applicant’s reconsideration submission constitutes a clear attempt to re-try his case where he failed to raise the majority of these arguments.
RESULT
5The applicant’s request for reconsideration is dismissed.
ANALYSIS
6The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, October 2, 2017,as amended February 7, 2019 (“Rules”). The applicant makes this request under Rule 18.2 (a) which is that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness, and under Rule 18.2 (b), as amended, which is that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
7The applicant’s 52 page submission requests reconsideration based on submissions as to violation of the rules of procedural fairness and errors of law and fact as summarized below.
Rule 18.2 (a) - the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness
8The applicant submits that I violated the rules of procedural fairness by:
a. delivering a Decision containing “insufficient reasons addressing or even acknowledging the extensive arguments and evidence the applicant put forth to demonstrate that proposed treatment plans and ACB are reasonable and necessary”;
b. failing in the Decision to address and provide reasons why there was a preference of the respondent Aviva’s submissions over applicant’s submissions.
c. failing to give the applicant’s submission or the medical record “a mere glance to understand the history of this present claim and/or correct issues in dispute and the medical record”;
d. appearing to replicate in the Decision the respondent Aviva’s submissions without providing a rational reasoning in support of same;
e. preferring the evidence of the respondent Aviva’s assessors, particularly Dr. Rabinovitch, despite these findings being inconsistent and not proportional to the bulk of evidence before the Tribunal;
f. preferring the evidence of Dr. Rabinovitch who lacked the medical expertise to examine the applicant for objective neurological impairments and to determine concussion treatment, and placing excessive reliance on Dr. Rabinovitch’s report indicating “unreasonable bias”;
g. Awarding no weight to applicant’s other health practitioners’ diagnoses, reports, findings and/or recommendations;
h. Accepting the finding of Drs. Rabinovitch and Moddel which are “contradictory to the remainder of medical evidence” and failing to address these factual discrepancies within the Decision and consequently “severely prejudiced the applicant”;
i. Failing to state sufficient reasons for the “arbitrary conclusions” in paragraphs 14, 15, 20, 32, 28, 39, 41, 45 and 48 of the Decision that the applicant had not discharged his burden of proof;
j. Failing to assess and consider the entirety of medical evidence in a rational and even-handed manner, thereby making the decision-making process flawed and incorrectly weighing evidence and arbitrary choosing to accept the respondent’s medical evidence without proving reasoning and without addressing the inconsistencies and lack of collaborating medical evidence in support;
k. Failing to review the medical evidence in its entirety in a rational and even-handed manner and subsequent failure to make a complete analysis to determine reasonableness of the proposed assessment;
l. Failing to address the objective diagnosis and treatment recommendations by other medical practitioners in support of chiropractic rehab and aqua therapy and holding that medical evidence doesn’t support the plan; m. Disregarding medical evidence and the applicant’s submission in its entirety and failed to weigh the evidence in a rational and even-handed manner,
m. Disregarding the entirety of medical evidence and failing to apply the law in determining the reasonableness and necessity of the plan, thereby making the decision-making process flawed and in clear breach of the applicant’s right to Disregarding the evidence in its entirety, accepting Aviva’s position without any reasoning, and failing to adjudicate based on the law and applicable test for the purpose of special awards procedural fairness to be heard; and
n. Disregarding the evidence in its entirety, accepting Aviva’s position without any reasoning, and failing to adjudicate based on the law and applicable test for the purpose of special awards.
9Having reviewed the Decision, I find that I did not act outside the Tribunal’s jurisdiction or violate the rules of procedural fairness.
10I find that I did not act outside the Tribunal’s jurisdiction. The applicant made no specific submissions in support of this ground.
11Contrary to the applicant’s submissions summarized in paragraph 8 (a),(b),(d) and (i) above that the reasons stated in my Decision are lacking, each of the issues in dispute was identified and reasons given for each finding. Each issue was fully and fairly considered, and the evidence of all parties, legal authorities and submissions fully considered. The Decision is supported by the evidentiary record and by full and fair reasons. There is no basis for the applicant’s submission in paragraph 8(c) above that I failed to give the applicant’s submissions or the medical record “a mere glance”.
12Although the applicant’s submissions summarized in paragraph 8(e),(f),(g),(h),(j),(k),(l), (m),(n) and (o) that I incorrectly weighed and preferred some evidence over other, awarded weight to some evidence and not other evidence and generally “disregarded” the applicant’s medical evidence “in it’s entirety”, I find no failure of procedural fairness or error in my Decision. It is the function of an adjudicator to consider and weigh all evidence on the record and to reach a conclusion based on the evidence, appropriately expressed. That is what I did in the Decision.
13All of the evidence, documents and submissions of all parties was considered by me. In a decision, it is well established that an adjudicator need not refer to every piece of evidence, submission or precedent referred to by the parties in submissions. Not doing so does not indicate it was not considered.
14The applicant generally expresses dissatisfaction with the result in the Decision. Dissatisfaction with the Decision is not a ground for reconsideration, nor does it establish a violation of the rules of procedural fairness.
15With respect to the suggestion that failing to make an award is a breach of procedural fairness and an error of law and fact as set out in paragraph 8(o) and paragraph 16(n), a special award is within the discretion of the adjudicator. Here, I exercised my discretion fairly and reasonably, and for the reasons set out in paragraphs 49 through 57 of the Decision. I find no breach of procedural fairness or error of law or fact in this exercise of my discretion.
Rule 18.2 (b) - the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made
16The applicant submits that I erred in law and fact by:
a. Failing to apply the corrective operative test to determine whether ACB are reasonable and necessary;
b. Determining that ACB was not incurred by the applicant above the approved amount, which was factually wrong as the attendant care/PSW invoices show ACB have been incurred;
c. Incorrectly weighing evidence and arbitrary choosing to accept the respondent’s medical evidence without proving reasoning and without addressing the inconsistencies and lack of collaborating medical evidence in support;
d. Failing to review the treatment plan in its entirety and failing to correctly apply the law as outlined in s. 47 of the Schedule;
e. Unilaterally making arguments on behalf of the respondent Aviva that the chronic pain assessment is available through OHIP, a burden Aviva did not discharge;
f. Failing to review the medical evidence in its entirety in a rational and even-handed manner and subsequent failure to make a complete analysis to determine reasonableness of the proposed assessment;
g. Failing to review Dr. Marchuk’s report in its entirety and failing to address inconsistencies in the report;
h. Failing to address the objective diagnosis and treatment recommendations by other medical practitioners in support of chiropractic rehab and aqua therapy and holding that medical evidence doesn’t support the plan;
i. Arbitrarily concluding that the insurer examinations were reasonably and properly scheduled and erred in finding the applicant’s claim is statutorily barred when the applicant was never placed in “noncompliance” by Aviva for failing to attend this IE;
j. Arbitrarily concluding that the applicant is statutorily barred for failing to attend a requested IE without determining that IE assessment was reasonably requested and complied with the notice requirements;
k. Incorrectly concluding that Dr. Rabinovitch has the medical training and experience to diagnose concussion;
l. Failing to review and analyze the treatment plan for social work counselling in its entirety, the purpose and goals of the plan and subsequently differentiate the services of a social worker verses a psychologist and apply the applicable law;
m. Disregarding the entirety of medical evidence and failing to apply the law in determining the reasonableness and necessity of the plan, thereby making the decision-making process flawed and in clear breach of the applicant’s right to procedural fairness to be heard; and
n. Disregarding the evidence in its entirety, accepting Aviva’s position without any reasoning, and failing to adjudicate based on the law and applicable test for the purpose of special awards.
17Having reviewed the Decision, I find no errors of law or fact in the Decision, including any errors of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
18Contrary to the applicant’s submission summarized in paragraph 16(a) above that I failed to apply the correct test for ACB, s. 19 of the Schedule is set out in paragraph 12 of the Decision and was applied.
19Contrary to the applicant’s submission summarized in paragraph 16(b) above regarding invoices for care, in paragraphs 13 and 14 of the Decision I found that because requests for additional information regarding the invoices remained unsatisfied, a quantum greater than $1,029.42 per month had not been established as reasonable and necessary. I found the applicant entitled to payment of $1,029.42 per month for the period already claimed. This finding is not a factual or legal error but an appropriate conclusion reached on the evidence before me.
20Contrary to the applicant’s submission summarized in paragraph 16(i) and (j) above, I found in paragraphs 23 and 29 of the Decision that the applicant had failed to attend reasonable and properly scheduled IE assessments without reasonable excuse. These findings were based on my review of the evidence before me and I find no error of law or fact in them.
21Contrary to the applicant’s submission summarized in paragraph 16(e) above, that in the Decision I was “unilaterally making arguments on behalf of the respondent Aviva that the chronic pain assessment is available through OHIP”, my Decision contains no “unilateral argument” on behalf of any party. In paragraph 42 of my Decision I found that it was clear from the applicant’s medical records that he has been referred to a pain clinic through his family physician, has been assessed and treated by OHIP funded physicians for pain and been prescribed medications with the result that under s. 47(2) of the Schedule I found this claimed benefit not to be reasonable or necessary. In paragraph 16 of the Decision, the evidence of a witness who testified in the live portion of the hearing also was that the applicant has seen an OHIP funded specialist. I find no error of law or fact in these findings based on the evidence cited.
22Although the applicant’s submissions summarized in paragraph 16(c),(d), (f),(g),(h),(k),(l),(m) and (n) suggest that I incorrectly weighed and arbitrarily preferred some evidence over other, awarded weight to some evidence and not to other evidence, and generally failed to review the medical evidence, I find no error of law or fact concerning evidence in my Decision. Again, it is the function of an adjudicator to consider and weigh all evidence on the record and to reach a conclusion based on the evidence, appropriately expressed. That is what I did in the Decision.
23I find no errors of law or fact as suggested by the applicant’s submissions summarized in paragraph 15(g) and (k) above. I found in paragraph 23 of the Decision that the applicant was entitled to $2,014.24 for chiropractic services but not the full amount of $3,847.03 as claim given that the applicant has not established entitlement to the balance of this claim in his medical evidence given Dr. Marchuk’s report. I preferred the evidence of Dr. Rabinovitch for the reasons set out in paragraph 46 of the Decision.
24All of the evidence, documents and submissions of all parties was considered by me. In a decision, it is well established, as also noted above, that an adjudicator need not refer to every piece of evidence, submission or precedent referred to by the parties in submissions. Not doing so does not indicate it was not considered.
25It was open to me, on the evidence before me in this particular case, to make the findings in the Decision and reach the conclusions made. I find no error of fact or law in doing so, let along an error of law or fact such that I would likely have reached a different result had the error not been made.
26I find that the applicant has not established his grounds for reconsideration. The grounds for reconsideration of a Tribunal Decision are limited and specific. In order to succeed on a reconsideration request, at least one of the grounds must be proven. Here, because the applicant requested reconsideration, the onus is on the applicant to establish his grounds and he has not done so. Instead, the applicant’s submissions appear raise many of the same arguments made at the hearing framed in a different and sometimes more detailed way. A reconsideration is not an opportunity to reargue one’s case or an appeal.
CONCLUSION AND ORDER
27For the reasons noted above, I dismiss the respondent’s request for reconsideration of my Decision dated March 2, 2022.
Avril A. Farlam, Vice-Chair Tribunals Ontario – Licence Appeal Tribunal
Released: July 26, 2022