Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 133

FSCO A05-002601

BETWEEN:

THURKA SHANMUGALINGAM

Applicant

and

RBC GENERAL INSURANCE COMPANY

Insurer

PRODUCTION DECISION

Before:

Fred Sampliner

Heard:

June 27, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on July 10, 2006 and July 14, 2006.

Appearances:

Nureen Shariff for Ms. Shanmugalingam

Aldo Picchetti for RBC General Insurance Company

Issues:

RBC General Insurance Company ("RBC") refused Ms. Thurka Shanmugalingam's pre-hearing request for RBC's adjusting notes to the date of mediation in reference to her claim for accident benefits under the Schedule¹ arising from a March 9, 2005 motor vehicle accident. The arbitration hearing of her claims commences in April 2007 at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue at pre-hearing is:

Is Ms. Shanmugalingam entitled to a copy of RBC's adjusting notes to the date of her filing for mediation?

Result:

Ms. Shanmugalingam is entitled to a copy of RBC's adjusting notes to the date she filed for mediation.

EVIDENCE AND ANALYSIS:

RBC paid Ms. Shanmugalingam income replacement benefits (IRB) for 16 weeks after the accident, limiting her entitlement on the basis that her soft tissue neck and back injuries did not allow her further entitlement under her automobile insurance policy.² Ms. Shanmugalingam claims that RBC should have known her injuries fell outside the Grade II Whiplash Associated Disorder (WAD II) that limits IRB entitlement, and that the adjuster should have considered her eligibility beyond the June 12, 2005 termination date. The question here is whether RBC's adjusting file may contain information that is potentially relevant to Ms. Shanmugalingam's claim that RBC unreasonably denied her payment of further income replacement benefits³, and that it is consequently liable to pay her a special award.⁴

There are two documents supporting Ms. Shanmugalingam's position that her injuries are not simply a WAD II disorder, and that the requested documents are relevant. The initial March 2005 diagnosis by Ms. Shanmugalingam's chiropractor that she sustained soft tissue bilateral shoulder/arm injuries as a result of the accident couples with her later description at the October 2005 Designated Assessment Centre (DAC) of bilateral elbow pain when driving and working at home in her kitchen. The DAC did not specifically address Ms. Shanmugalingam's shoulder and arm injuries and disability in arriving at its conclusion, and RBC relies on it.

The contradiction between the chiropractic diagnosis of her medical conditions outside the WAD II framework must be considered alongside the arbitration decisions that have held that it is a wise policy for insurers to reflect upon their position when new or conflicted evidence indicates reconsideration of eligibility.⁵ Thus, I reject RBC's argument that Ms. Shanmugalingam is simply on a fishing expedition because her position on this request for production is arguably supported by evidence.

Ms. Shanmugalingam claimed a special award in her initial Application for Arbitration and has provided particulars about the basis for the claim during the pre-hearing and through written submissions in support of her production request. I see little merit in RBC's argument that Ms. Shanmugalingam is barred from advancing her claim for a special award due to lack of factual basis or lack of notice of the basis for the claim.

Without deciding the specifics of Ms. Shanmugalingam's injuries, I rely on the medical information that Ms. Shanmugalingam suffered injuries outside the WAD II framework as a sufficient foundation to support her argument that she is entitled to review RBC's claims handling process up to the date she filed for mediation of the parties' dispute. I find that Ms. Shanmugalingam is entitled to copies of the complete unedited notes of RBC's adjuster to the date she filed for mediation.

EXPENSES:

Neither party requested expenses of this production issue, and I defer the question of expenses on this matter to the decision by the arbitrator who conducts the main hearing.

August 3, 2006

Fred Sampliner Arbitrator

Date