Volume. 3 Issue. 38 – October 30, 2019
Award, Res Judicata & Adjudicators Reconsidering Their Own Decisions
In this week’s LAT inFORMER, we report on a case where an award was granted for four Treatment Plans, as well as a case where the doctrine of res judicata was found to be applicable.
There were 6 recently released reconsiderations where the matter was sent back to the original Adjudicator for rehearing. The original decision was upheld in all cases. While reconsiderations can be reviewed by the Associate Chair or assigned to Vice-Chairs, Adjudicators at the peer level or the hearing Adjudicator, it remains unclear on what basis the original Adjudicator is assigned to reconsider their own decision.
Approvals of Disputed Benefits Days Before Case Conference Unreasonable
In 18-006624 v Aviva, submitted by Roger Foisy and Rusald Laloshi at Roger R. Foisy and Associates, the Applicant sought an award based upon denial of benefits claimed in the application approval only days before the parties were scheduled to attend a Case Conference.
Following denial of various benefits based upon the Applicant being found to be within the MIG, the Respondent removed the Applicant from the MIG on April 26, 2018 based upon a psychological IE. The Respondent however maintained the denials until approving the items in dispute November 12, 2018, days prior to the Case Conference, without explanation.
The Tribunal found the continued denial between April and November 2018 to be an unreasonable withholding or delay of payments, given that effective April 26, 2018, the Respondent had an obligation to determine whether any treatment plans, relating to physical or psychological injuries, were reasonable and necessary. Further, the Respondent failed to explain why it decided to “update” its decision and approve the disputed claims, nor was there any evidence of new information after April 2018. As a result, the Tribunal found that the Applicant is entitled to an award in the amount of $1,500.00 plus interest.
The Doctrine of Res Judicata Applies, Again
Could Not vs. Was Not – In 18-005613 v Wawanesa, an unreported decision not yet available on CanLII, the Tribunal once again considered the doctrine of res judicata. The Tribunal found that claims from a second application had already been decided and are subject to the principle of res judicata. Specific issues “common to both appeals have been decided, and the decisions are final as all appeal routes have been exhausted”.
In order to waive res judicata:
- Fresh, new evidence must be submitted that was previously unavailable and
- that new evidence would conclusively impeach the original results
It was found that “a medical assessment or opinion is not unavailable simply because it was not obtained prior to hearing…‘unavailable’ in the context of applying res judicata means that the evidence could not have been obtained, not that it simply was not”.
While confirming that a MIG determination is not static, the Tribunal found that two reports commissioned after the initial hearing provided “no indication of ongoing deterioration or change in medical condition from the time of the first hearing, or a contrast with conditions noted in the prior medical documentation”.
In this decision, it was noted that there are persuasive precedents for the consideration of res judicata by the Tribunal. These include 17-006816 v Cooperators and 16-003909 v Aviva in which the principle of res judicata applied.
In a recent case, 18-006048 v Aviva, the Tribunal also applied the doctrine of res judicata, finding that the issue of causation had already been decided.
It was noted that there are generally four prerequisites to be established:
- The two actions must involve the same parties or their privies;
- The claim sought to be asserted must have been within the prior court’s jurisdiction;
- Prior adjudication must have been on the merits; and
- The prior decision must have been a final judgment.
In Trending – Original Adjudicators Reconsidering Their Own Decisions
In the 6 recent cases where the original hearing Adjudicator was tasked with hearing their own reconsideration request, the original decision was upheld in all cases. It remains unclear on what basis the original Adjudicator is assigned to reconsider their own decision.
Chronic Pain Diagnosis Now Required? – 18-001944 v Aviva
Original Decision February 21, 2019
The Tribunal found that the Applicant was not entitled to a chronic pain assessment. Relying on the conclusions of the assessment that was subsequently conducted, “the Tribunal expressed concerns over [the assessor]’s report and highlighted [the assessor]’s opinion that [the Applicant] suffers from chronic pain, as opposed to chronic pain syndrome.”
Reconsideration August 14, 2019
Hearing her own reconsideration, without however acknowledging that fact, the Adjudicator upheld her original decision.
Largely relying upon considerations from the original decision, the Adjudicator again noted that “[the assessor] did not diagnose [the Applicant] with chronic pain syndrome following his assessment which is a separate medical condition than ‘chronic pain’”. In addition, she noted that the assessor’s opinion did not assist the Applicant in establishing that the chronic pain assessment was reasonable and necessary because she was not diagnosed with chronic pain syndrome.
Despite the foregoing, the adjudicator stated, “The Tribunal did not find that in order for a chronic pain assessment to be reasonable and necessary that such a referral or a diagnosis is required.”
This result appears significantly at odds with established LAT jurisprudence, wherein a chronic pain diagnosis is not required but rather the test is whether it is ‘reasonable and necessary’ to explore the concerns raised. While the Adjudicator claims a chronic pain syndrome is not required to be diagnosed, the conclusions in both the original and reconsideration decision would suggest at least, otherwise.
Open versus Empty Mind – 18-004783 v Coseco
Original Decision June 24, 2019
The Tribunal found that the Applicant was statute barred from proceeding with his appeal due to his failure to attend IEs. The Applicant’s submissions as to reasons for non-attendance were described as “bewildering”, “unsupportable”, “without any merit”, “lack credibility” and “nothing more than scandalous innuendo”.
Reconsideration October 1, 2019 (submitted by Shirline Apiou at Dutton Brock LLP)
The saga continues, as the Applicant sought reconsideration. He argued a failure to review his submissions, and a reasonable apprehension of bias resulting in “a foregoing of justice in order to implement a policy of roughshod justice…”.
Outcome
Despite the nature of the allegations, the Associate Chair assigned the matter back to the hearing Adjudicator. Dealing with the suggestion of “a series of factual and legal errors so egregious and incomprehensible that I could not possibly have seen or read his responding submissions”, the Adjudicator noted, “The fact that [the Applicant] disagrees, however vehemently and incredulously, with my findings is not proof of bias, nor is it proof that I failed to review his submissions.”
Regarding the recusal due to bias, the Adjudicator noted that “there must be more than mere suspicion.” The Applicant further contended that the Adjudicator had a “closed mind” with “policy focused decision targeting efficiency” and “policy driven objective [blinding] you…”. In response, the Adjudicator found that “‘impartiality’ and ‘neutrality’ do not mean that an adjudicator must have no prior conceptions opinions or sensibilities, rather that same does not close his or her mind [to] the evidence and issues. There is, in other words, a critical difference between an open mind and an empty one.”
Given the nature of the Applicant’s positions in both the original decision and now the reconsideration, it remains to be seen whether they will pursue other available avenues, especially in light of the hearing Adjudicator reconsidering his own decision?
A Tenuous Tipping of the Scale for CAT – 18-000169 v TD
Original Decision February 25, 2019
The Tribunal found that the Applicant sustained a catastrophic impairment based upon a marked impairment in the Adaptation domain. Despite this finding, the Applicant was found not entitled to a post-104 IRB.
Reconsideration August 30, 2019
The Applicant argued that the Adjudicator erred in not awarding post-104-week IRB. It was suggested that “the determinations in the decision are incongruous or inconsistent with the findings of fact, submitting that a CAT determination is logically inconsistent with the denial of post-104-week IRB’s and attendant care”.
Outcome
Upholding the original decision, the Adjudicator reiterated that “I found his entitlement to this extended tier of benefits via Criterion 8 to be somewhat tenuous on a balance of probabilities…I reference an imaginary fence between classes three and four and how I found…that there was enough to tip [the applicant] over that fence and into the Marked category.” Concluding, “I find the decision indicative of a careful wading through and weighing of the evidence before the Tribunal to arrive at what is, in my view, a correct and just outcome on the merits of a complex case.”
Another emerging trend has set in, with a further three instances wherein the original hearing adjudicator heard their own reconsideration. As was the case in the three matters, above, the original decision was upheld in 18-002368 v Pafco, 18-000468 v Certas and 18-001627 v TD.
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