September 29, 2014

SABS Update: Timely Production – Better Safe Than Sorry

Yan v. State Farm, Decision on a Motion, August 28, 2014, FSCO A12-004991, Arbitrator Alan Mervin

MVC August 19, 2009. State Farm denied the insured’s entitlement to IRBs one year post-MVC, following an insurer examination (IE) with an orthopedic surgeon. The insured applied for Arbitration. Following the pre-hearing, a “large volume” of medical productions was provided by the insured. Two months later, State Farm brought a motion to compel the insured’s attendance at six IE’s to assess his ongoing entitlement to IRBs, including a vocational assessment, chiropractic examination, psychiatric examination, neurological examination, orthopedic examination and examination with an ENT.

The insurer’s position was that the late service of the large volume of medical productions triggered the request for the IE’s. The insured’s position was that the requests were made to bolster the insurer’s case at Arbitration. The insured refused to attend the assessments.

On the motion, Arbitrator Mervin reviewed the relevant factors that should be taken into account in deciding whether the IEs requested are reasonable and necessary. Citing State Farm v. Ramalingam, he noted the enquiry should focus on the objective factors identified in numerous decisions, including:

  1. The timing of the request, especially whether it will require the hearing to be adjourned;
  2. Whether the claimant disclosed relevant materials as soon as reasonably possible in accordance with the Dispute Resolution Practice Code and whether the insurer made its IE request as soon as it reasonably determined the need for the examination;
  3. What other information is available to the insurer, including information provided by the claimant and the number, nature and date of previous insurer examinations;
  4. Whether information provided by the claimant since the insurer’s last insurer examination suggests a new diagnosis, a change in the claimant’s condition or a new direction in medical investigation of it;
  5. Whether there is a reasonable nexus between the requested examination and the insured person’s injuries;
  6. Whether the insurer accepts the claim and continues to pay benefits; and
  7. Generally whether the request is reasonable considering the balance between the insured person’s right to privacy and the insurer’s ongoing right and obligation to assess the claim.

Citing Sabet v. Allstate, Arbitrator Mervin noted the onus is on the insurer to prove the requested IEs are reasonable and necessary.

Arbitrator Mervin found the request for additional IEs reasonable and necessary. The need for additional IEs became apparent upon review of the large volume of medical documentation produced after the pre-hearing. The fact the documentation was not provided prior to the pre-hearing, in contravention of the Dispute Resolution Practice Code, was a significant factor in Arbitrator Mervin’s decision, noting “had the insurer been provided the requested medical documentation prior to the pre-hearing, and then did not raise the issue of additional IE’s based on the new documentation at the pre-hearing, I would be less sympathetic to the request for additional IEs”.

However, Arbitrator Mervin only allowed four of the six IEs. He denied the insurer’s request for an additional orthopedic assessment or an assessment with an ENT.

State Farm also sought production of the insured’s employment file from three years pre-MVC to date. State Farm argued it was relevant as there was indication of a prior work-related accident earlier in 2009. State Farm took the position they required the file to properly assess the insured’s entitlement to IRB’s.

Arbitrator Mervin confirmed the general rule for production of pre-MVC records is one year prior to the collision, unless, in certain cases, documents relating to a period of more than one year may be relevant and ought to be produced. Relevance is determined with reference to the issues in dispute. As the family physician’s records raised the question of modified work duties in the year prior to the MVC, Arbitrator Mervin found the employment file was relevant to the issue of entitlement to IRB post-104 weeks. However, he found no reason to produce more than 1 year pre-MVC.

 

IMPLICATIONS

Timely disclosure of relevant documentation continues to be an issue. Although the outcome may have been the same even if the documentation had been produced prior to the pre-hearing, review and production of all relevant documentation prior to the pre-hearing is a worthwhile endeavor.

 

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