December 07, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: August 28, 2014
Heard Before: Adjudicator Alan Mervin
DECISION ON A MOTION
Are the insurer medical examinations scheduled by the Insurer reasonable and necessary?
Is it reasonably necessary for Mr. Yan to attend six insurer examinations pursuant to section 44 of the Schedule?
If the examinations are deemed to be reasonable and necessary, is State Farm entitled to a stay of the arbitration proceedings until such time that Mr. Yan attends these examinations?
Is State Farm entitled to production of the Applicant’s complete employment file from January 2006 to date?
Four insurer examinations − a psychiatric examination, a vocational assessment, a functional abilities evaluation and a neurological assessment − which were scheduled for Mr. Yan, are reasonable and necessary.
This arbitration is stayed until such time as Mr. Yan attends four fresh insurer examinations, as above, to be scheduled by the Insurer.
State Farm is entitled to production of the Applicant’s complete employment file, from one year pre-accident to date.
Zhenling Yan was injured in a car accident on August 19, 2009. Mr. Yan allegedly sustained whiplash, a sore neck, tinnitus, anxiety, headache and insomnia, all of which he claims are ongoing. He applied for and received statutory accident benefits from State Farm who paid weekly income replacement benefits from August 26, 2009 to November 2, 2010 at which time an initial insurer’s examination arranged by State Farm concluded that Mr. Yan did not suffer a substantial inability to perform essential tasks of his pre-accident employment resulting in State Farm terminating the IRB (income replacement benefit). Mr. Yan applied for arbitration at FSCO.
Multiple IEs were conducted with respect to other benefits claims, 4 in the post-104 period, however none of these addressed the IRB issue. As Mr. Yan did not meet the less stringent test for pre-104 IRBs State Farm did not seek further post-104 week IEs until August 2013, at which time State Farm sent six letters to Mr. Yan requesting attendance at six separate insurer examinations, for the stated purpose of assessing his entitlement to IRBs. In September of 2013 Mr. Yan advised State Farm that he would not attend any of these IEs as the issue was now in Arbitration.
A pre-hearing dealt with State Farm’s various outstanding production requests. Mr. Yan delivered numerous medical records and documents which had been agreed upon one week after the prehearing. Contained in this material were medical documents relevant to the post-104 week IRBs which the Insurer had not seen before nor apparently was aware of, and most had been requested in Schedule C of the Insurer’s Response to the Application for Arbitration.
Included in the documents was information about a work related accident and WSIB claim prior to the car accident, and a copy of a recent psycho-vocational/rehabilitation evaluation. There were physician’s notes which indicated Mr. Yan’s ongoing pain, headaches, tinnitus, insomnia, and psychological problems. There were also physician’s notes from May 2013 concluding Mr. Yan was not employable on either a part or full-time basis and that Mr. Yan not been able to carry out any employment since the motor vehicle accident.
There was no mention of any additional IEs at the pre-hearing, although it was clear at that time that post-104 week IRBs were sought by Mr. Yan. It is State Farm’s position that the large volume of late medical productions triggered the requests for further IEs. Mr. Yan suggests that the requests were made to bolster the defence case at arbitration.
The examinations initially requested were a chiropractic examination, a psychiatric evaluation, a neurological examination, an examination by an ENT, and an orthopaedic examination. Mr. Yan took issue with the notice of request as they did not specifically state that they were to assess post-104 week IRBs; rather, the purpose as stated was to assess “Income Replacement Benefits.” He refused to attend the IEs. The Arbitrator ruled the description was sufficient to advise Mr. Yan of its purpose.
State Farm requested the IEs a second time, omitting the ENT exam in this request, but adding a functional abilities exam. Mr. Yan again refused to attend. That refusal resulted in this motion. A third round of IEs were requested by State Farm for vocational assessment, functional abilities evaluation, psychiatric evaluation, a neurological examination, and an orthopaedic examination. Through no fault of the parties, these appointments could not be kept, as a decision on this motion had not yet been issued, and State Farm has asked for an Order staying the arbitration until such time as Mr. Yan attends the IEs.
The Arbitrator reviewed the Law and the Evidence in the case and determined that insurers may require IEs to determine benefit eligibility. Arbitrators should consider whether the requests are reasonable and necessary, and should consider the timing, relevant disclosure of materials by claimants, other information available to the insurer, whether information exists that suggests a change in the claimant’s condition, whether there is a reasonable nexus between the examination and injury, whether the insurer accepts the claim, and whether the request is reasonable in respect to the person’s privacy.
State Farm submits that its IE requests are reasonable and necessary in order to assess Mr. Yan’s condition and entitlement to benefits on an on-going basis. In this case the car accident occurred August 19, 2009. Since the initial IE report of October 18, 2010, addressing pre-104 week IRBs, there have been no further requests for IEs to address the issue of post-104 week IRBs until the current notices were issued. As the test for entitlement changes post-104 State farm argues the request is reasonable. State Farm also submits that the subsequent production of the medical documentation, when received, triggered the request for updated IEs, as basically a psychological impairment was now being alleged, and Mr. Yan had previously been assessed by the Insurer only for pre-104 week IRBs by an orthopaedic surgeon.
Mr. Yan submits that the timing of the requests have nothing to do with State Farm’s obligation to assess his continued entitlement to benefits. He submitted he declared his intention to seek post-104 week IRBs as early as the mediation stage. The Application for Mediation dated January 28, 2011 and the Report of Mediator dated May 23, 2012 both note that IRBs were being claimed on an ongoing basis. The Application for Arbitration was submitted to FSCO on August 23, 2012. Mr. Yan submits State Farm was fully aware of his condition as he enclosed documentation from various medical practitioners with an OCF-3. He also submitted documentation in 2011 indicating physical and mental impairment.
The Arbitrator ruled it would be unfair to allow IEs simply to bolster the State Farm’s case against Mr. Yan, and did not find that to be the case in this matter. While it is true that the request for additional IEs to assess post-104 week IRBs came late in the proceedings it was clear State Farm had been, and still was seeking production of various documents for some time, having written several request letters without success.
There is little documentation supporting Mr. Yan’s position that State Farm knew about the psychological and neurological component of the post-104 week IRB claim until the mass production of documentation of June 29, 2013. The Arbitrator ruled that had Mr. Yan produced the documentation when initially requested then there would not have been such a delay in the request for further IEs.
The Arbitrator therefore found that in the circumstances of this case, further insurer examinations are reasonable and necessary in order for a full and fair hearing to take place.
The general rule for production of pre-accident records is one year prior to the accident, unless, in certain cases, documents relating to a period of more than one year may be relevant and ought to be produced. As a rule, relevance is determined with reference to the issues in dispute. The Arbitrator found that the clinical notes and records raise a question with respect to modified work duties in the year prior to the MVA, and establish a foundation that the employment file of Mr. Yan is prima facie relevant to the issue of entitlement to post-104 week IRBs. As IRBs are in issue in this case, there is no reason why they should not be ordered in this case going back one year prior to the car accident.