Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 50
FSCO A05-002293
BETWEEN:
JENNIFER HUNTLEY
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A MOTION
Before: Elizabeth Nastasi
Heard: By telephone conference call on February 23, 2007. Insurer's written submissions received on February 5, 2007. Applicant's written submissions received on February 15, 2007.
Appearances: Catharine Simons for Ms. Huntley Sonia Fabiani for State Farm Mutual Automobile Insurance Company
Introduction:
The Applicant, Ms. Jennifer Huntley was injured in a motor vehicle accident on October 12, 2001. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company ("State Farm"), payable under the Schedule1 State Farm terminated weekly income replacement benefits on November 26, 2004. Ms. Huntley elected to attend at a Disability DAC Assessment which concluded that she did not meet the post-104 week test for disability.2 State Farm is seeking a repayment of her income replacement benefits for the period from November 26, 2004 to June 4, 2005.
The parties were unable to resolve their disputes through mediation, and Ms. Huntley applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue before me in this motion is whether the Applicant is required to produce to State Farm, for the purposes of the arbitration hearing, a defence medical examination ("Tort Defence Medical") conducted by a neurologist. The report was requisitioned by defence counsel in the tort action of this matter and the examination took place on June 1, 2005. The report is dated June 13, 2005.
Issue:
- Is Ms. Huntley required to produce the neurological examination report dated June 13, 2005, prepared in relation to the companion tort action?
Result:
- Ms. Huntley is not required to produce the neurological examination report dated June 13, 2005.
BACKGROUND FACTS:
Ms. Huntley was involved in a motor vehicle accident on October 12, 2001. Prior to the accident, she was employed as a bookkeeper and receptionist. Ms. Huntley claims that as a result of the accident she is unable to engage in any occupation for which she is suited by training, education and experience and claims entitlement to income replacement benefits from November 26, 2004 and ongoing.
Prior to the neurological examination which is the subject of this motion, Ms. Huntley was examined by a neurologist at the request of State Farm on two separate occasions. Ms. Huntley was examined by Dr. R. MacDonald on April 23, 2003 and February 3, 2004. Dr. MacDonald addressed the question of eligibility for post-104 week income replacement benefits during the February 3, 2004 examination. On October 15, 2004, Dr. MacDonald reviewed additional medical information including the results of a neurological consultation with Dr. Dhanani dated February 11, 2004. Dr. MacDonald provided an addendum to his February 2004 report and concluded that from a neurological perspective the new information did not change his previous responses.
Ms. Huntley was evaluated again in the context of a Disability DAC assessment on January 18, 2005 by Dr. Dina Savelli, neurologist and on February 11, 2005 by Dr. Elaine McKinnon, a neuropsychologist. The Disability DAC report, dated May 17, 2005, came to a similar conclusion that Ms. Huntley did not suffer a complete inability to engage in any employment and thus did not meet the post-104 week test for income replacement benefits.
At her own request, Ms. Huntley was assessed by neuropsychologist, Dr. Paula Dimeck, on December 3, 9, 11, 2003. Her report is dated January 22, 2004. Ms. Huntley was also examined in the clinical context on February 11, 2004 and in December 2004 by Dr. Al-Noor N. Dhanani, neurologist. State Farm has been provided full access to all of the above evidence.
The Parties' Arguments
Both parties agreed that the factors to be considered when ruling on the production of defence medical reports generated in a tort action are as follows:
a. The relevance of the documents;
b. The sufficiency of the existing documents;
c. Whether the documents will complicate or unduly prolong the arbitration proceeding; and
d. The prejudice to the parties.3
State Farm's Submissions
In addition to the factors listed above, State Farm argued that courts and tribunals ought to have the best evidence, or all the evidence, bearing on the issue in dispute.4 State Farm submitted that the Tort Defence Medical in question is prima facie relevant as it addresses the injuries which the Applicant states she sustained in the car accident and as such is the best evidence.5
Counsel for State Farm also argued that the timing of the Tort Defence Medical conducted on June 1, 2005 makes it the best available evidence to assess Ms. Huntley's disability. The Independent Medical Assessment conducted by Dr. MacDonald to assess post-104 week eligibility, took place on February 3, 2004. State Farm's position is that there was a 1 year 3 month period where the Insurer had not conducted any examinations post-termination of the income replacement benefits.
The DAC assessment took place in January 2005, only 5 months before the Tort Defence Medical. Although both a neurologist and neuropsychologist were part of the DAC team of assessors, counsel argued that a DAC "is not the same" as a defence medical and that the Tort Defence Medical coincides with the date in which the Applicant is claiming income replacement benefits.
State Farm argued that an arbitrator has the discretion to order the production of a medical report from the tort claim that post-dates the termination of benefits. In making this submission, State Farm relied on the decision in Snook and ING Insurance Company of Canada6 In that case, Arbitrator Sandomirsky ordered the production of defence medicals generated after benefit termination based on the fact that the insurer had not requested insurer examinations after that point. In Snook, the production of defence medicals was determined to be "reasonable disclosure" that would not result in a "battle of numbers." State Farm argued that this case is very similar to Snook in that there were no insurer examinations conducted after the termination of Ms. Huntley's income replacement benefits.
State Farm submitted that the production of the Tort Defence Medical will not lengthen or complicate the proceedings. State Farm relied on the decision in Vossos in which Arbitrator Sone found that since it was possible the Applicant would be getting a responding report for the tort action, there would be no prejudice or additional time and expense incurred.7 State Farm also relied on Lombardi and State Farm Mutual Automobile Insurance Company.8
In that case, the Arbitrator found that since the report already existed and was already in the hands of the Applicant, the result would be to simplify the process, not make it more complicated.
Finally, State Farm argued that in this case there would be prejudice to the Insurer if production of the Tort Defence Medical is not ordered. The parties concurred that none of the medical examiners in this case have identified any objective neurological cause for Ms. Huntley's neurological symptoms (i.e./chronic headaches and chronic cervical strain). State Farm's position is that the Tort Defence Medical may be relevant in assisting in this regard.
Ms. Huntley's Submissions
Ms. Huntley argued that the production of the Tort Defence Medical would unnecessarily lengthen and complicate the proceedings without adding any relevant evidence. Counsel advised that the tort case was resolved before the production of any responding report on behalf of the Applicant was commissioned. Therefore, the production of the Tort Defence Medical would create additional expenses for the Applicant as it may require her to commission a responding neurological report.
Finally, the Applicant's counsel submits that production of the Tort Defence Medical would result, as the Snook decision cautions, in a "battle of numbers." The result would be inconsistent with the arbitration rules and practices which strive to produce a just, quick and cost effective process for resolving disputes.
ANALYSIS AND CONCLUSION
An arbitrator may at any time order the production of documents or the giving of information that he or she considers relevant to the determination of the issues in the arbitration, on such terms as he or she considers appropriate.9
In exercising this power, arbitrators must consider not only the factors set out in Sandhu, but the overall impact production of documents from a tort action might have on the arbitration process. A request for an insured to produce documents from a related civil action involves the exercise of an arbitrator's authority to control his or her own process.10
In the Sandhu appeal decision, Director's Delegate McMahon declined to order disclosure of tort defence medicals although he found the documents relevant to the issues in dispute. The general rule adopted from this case is that the production of defence medicals will not be granted in the absence of a compelling argument that the medical evidence obtained pursuant to the Schedule is insufficient. Further, the Director's Delegate stated:
Any consideration of a request to order production of defence medicals must be made against the backdrop of the insurer's ability to generate medicals within the FSCO proceeding.
In this case, like Sandhu, the Insurer relied upon the Schedule to conduct several medical examinations. In addition, Ms. Huntley was examined at a Disability DAC. I find that State Farm has in its possession sufficient assessments to adequately raise a defence at arbitration. Although the neurological report in question may be relevant to the issues in dispute, I find it is likely to lengthen and complicate the hearing process. Given the availability of existing medical documentation, production of the Tort Defence Medical would encourage a "battle of numbers" and a doubling up by the Insurer.
The Vossos case can be differentiated in that Vossos was a claim for a non-earner benefit and Arbitrator Sone noted that the reports that did exist were not conducted by a professional with special qualifications in vocational rehabilitation and thus the defence medicals would provide additional relevant information to the hearing arbitrator. I do not find that to be the case here. In this case, the main issue before the arbitrator will be entitlement to post-104 income replacement benefits - a question addressed in the February 3, 2004 Insurer's Examination.
The Snook case can also be distinguished from this case. In Snook, although the Insurer had the right to request medical examinations under the Schedule, it decided not to. Arbitrator Sandomirsky ordered the production of defence medicals only where there was a gap in the evidence available to properly assess whether the Applicant met the test for entitlement to income replacement benefits two years after the accident. In the case of Ms. Huntley, the Insurer exercised their opportunity to assess her with respect post-104 week eligibility. There was no new medical information with respect to Ms. Huntley's neurological condition presented to the Insurer since the termination of her benefits.
Finally, I do not find State Farm's argument that they will be prejudiced compelling. The issue in this case is whether Ms. Huntley is eligible for income replacement benefits post-104 weeks. The Insurer already has two Insurer examinations and a Disability DAC assessment conducted by neurologists and/or neuropsychologists that support their position. It was not made clear to me by State Farm in what way one more neurological report would make this issue any more clear.
After considering the parties' submissions, I refuse State Farm's request for production of the neurological examination report dated June 13, 2005.
EXPENSES:
I reserve the issue of expenses to the hearing arbitrator.
March 15, 2007
Elizabeth Nastasi Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 50
FSCO A05-002293
BETWEEN:
JENNIFER HUNTLEY
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- The request of State Farm that Ms. Huntley produce the neurological examination report dated June 13, 2005, prepared in relation to the companion tort action is denied.
March 15, 2007
Elizabeth Nastasi Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Subsection 5(2)(b) of the Schedule provides that for any period longer than 104 weeks of disability, an insured person must establish they are suffering a complete inability to engage in any employment for which they are reasonably suited by education, training and experience.
- These factors were first set out in Sandhu and CAA Insurance Company (FSCO P01-00044, January 18, 2002) and affirmed on appeal in CAA Insurance (Company) and Sandhu (Appeal P01-00044, January 18, 2002). See also Abate and Liberty Mutual Insurance Company (FSCO A03-001542, June 11, 2004) and Vossos and Western Assurance Company (FSCO A04-001072, September 9, 2005).
- Tanner v. Clark and Reimer v. Christmas (2003), 2003 CanLII 41640 (ON CA), 63 O.R. 508 (C.A.) at para. 7.
- Reid and Royal & Sun Alliance Insurance Company of Canada (FSCO A99-000959, January 19, 2000).
- (FSCO A02-000728, September 15, 2003).
- Vossos and Western Assurance Company (FSCO A04-001072, September 9, 2005).
- (FSCO A99-000957, December 4, 2003).
- Rule 39 Dispute Resolution Practice Code.
- CAA Insurance (Company) and Sandhu (Appeal P01-00044, January 18, 2002).