Uthayakumary Ahilan v. State Farm Mutual Automobile Insurance Company, 2010 ONFSCDRS 140

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 140

FSCO A09-002905

BETWEEN:

UTHAYAKUMARY AHILAN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Judith Killoran

Heard: Written submissions were received on September 24, October 25 and November 8, 2010.

Appearances: Eric Boschetti for Ms. Ahilan

Joanna Cox for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Uthayakumary Ahilan, was involved in a motor vehicle accident on August 10, 2008. She applied for statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Ahilan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

State Farm seeks an order compelling Ms. Ahilan to request and produce a copy of her entire post-accident employment file from Symcor/Royal Bank of Canada.

Result:

Ms. Ahilan is not obliged to produce her post-accident employment file from Symcor/Royal Bank of Canada.

EVIDENCE AND ANALYSIS:

At the August 25, 2010 pre-hearing discussion before me, a dispute arose between the parties with respect to productions. State Farm requested from Ms. Ahilan a copy of her post-accident employment file, which was refused. The substantive issues in dispute which were identified and agreed to at the pre-hearing were as follows: caregiver benefits, medical benefits, attendant care benefits, housekeeping benefits and the cost of assessments relating to these benefits.

I proposed a schedule for the parties to submit written submissions on the production issue in dispute.

Rule 32.3 of the Dispute Resolution Practice Code states:

Subject to Rule 39, 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.

Additionally, Rule 32.2 states:

Subject to the time lines under Rule 39, the parties have an ongoing responsibility to ensure the prompt and complete exchange of documents that are reasonably necessary to determine the issues being arbitrated, including updates to the information previously exchanged and any additional documents obtained.

Ms. Ahilan is an accounting clerk at Symcor/Royal Bank of Canada who resides in Stouffville, Ontario. Following the accident, Ms. Ahilan submitted to State Farm an Application for Accident Benefits dated August 27, 2008. In Part 7 of the application, Ms. Ahilan stated that she was the main caregiver to two children born September 16, 1993 and January 10, 1996. She claimed that, as a result of her injuries, she was unable to engage in her caregiving activities “due to pain and impairments.”² However, she returned to work on August 13, 2008, which was 3 days after the accident.

A Disability Certificate completed by Dr. Aria Sanei on August 18, 2008 stated that the Applicant returned to work although the work aggravated her pain. Dr. Sanei’s prognosis was that she would be disabled from her housekeeping and caregiving activities for 9-12 weeks.³

An Activities of a Normal Life Form dated August 27, 2008 indicates that Ms. Ahilan was capable of balancing a bank book, keeping appointments, reading and remembering what she reads, following along with movies and TV shows, remembering and following directions, prioritizing activities, keeping track of conversations, finding words to express her thoughts and writing so that others can understand.⁴

State Farm submits that the requested employment file is important to ensure a just and fair hearing as it contains information and evidence critical to an assessment of Ms. Ahilan’s entitlement to ongoing disability benefits and medical and rehabilitation benefits. In order to properly determine all matters in dispute, all the records relating to the Applicant’s level of disability, attempts at rehabilitation and attempts to return to all activities of daily living should be put before the arbitrator.

State Farm’s position is that the post-accident employment file will speak to Ms. Ahilan’s disability from activities of daily living. State Farm submits that Ms. Ahilan’s quick return to accounting work after the accident, including her daily commute from Stouffville to downtown Toronto, is relevant to the question of the impact her impairments had on her abilities, physical and cognitive, to carry out all of her daily activities, not just her employment. According to State Farm, the employment file would contain attendance records and notes to file chronicling Ms. Ahilan’s post-accident work activities, including any difficulties, absences, sick days, illness and/or doctor’s notes as a result of the accident. The employment file would also document any workplace accommodation, modifications and/or assistance made available to Ms. Ahilan as a result of injuries and impairments sustained in the accident.

According to State Farm, Ms. Ahilan has told various assessors that she returned to work within 3-4 days after the accident on full-time hours and full duties. She has confirmed that her pre-accident work responsibilities included among other things, lifting, bending, carrying, prolonged sitting and sustained postures. State Farm submits that her ability to perform these activities at work is relevant to her ability to perform the same types of activities in other areas of her life, areas for which she makes claims for accident benefits. State Farm submits that the employment file is a vital piece of information when considering Ms. Ahilan’s level of disability, regardless of whether income replacement benefits are in dispute.

State Farm submits that the test for production of documents is relevance and reasonableness. The degree of relevance is weighed against such factors as sensitivity of information, the practicalities of compliance and the timing of the request. State Farm relies on Nigro and State Farm Mutual Automobile Insurance Company, for the principle that if there is a reasonable possibility that the information in a party’s possession is relevant to the issues in the arbitration, “that is sufficient to allow an arbitrator to order production of the document.”⁵

Ms. Ahilan relies on the test of reasonableness and disclosure of employment records where no income replacement benefits were claimed as addressed in Morgan and Security National.⁶ Although brief references to the applicant’s work and injuries had been made in medical reports, the arbitrator ruled: “I do not accept that the mention of employment function in medical reports warrants a broad disclosure of his employment records.” The only records from the file that were ordered produced were employment records in respect of collateral medical benefits which were relevant to the claims.

At the pre-hearing on August 25, 2010, State Farm requested the employment file based on references to employment in the medical reports. According to the reasoning in Morgan, this is not a sufficient basis to establish relevance and require production of an employment file in its entirety. In this matter, Ms. Ahilan has no collateral benefits for medical, short-term or long-term disability benefits available to her through her employer.

The employment file provides no information about Ms. Ahilan’s commute to work, it only documents her attendance. According to Ms. Ahilan, attendance may be relevant to an income replacement benefits claim and an applicant’s ability to work, but it is not relevant to her abilities outside of work. Ms. Ahilan submits that no claim for income replacement benefits has ever been made by the Applicant against State Farm. State Farm confirmed that Ms. Ahilan was not eligible for income replacement benefits by way of an Explanation of Benefits (OCF-9) dated September 10, 2008.

As described by Ms. Ahilan, the documents that may be relevant when disability benefits are claimed must be relevant to the disability benefits that are claimed and not to disability benefits in general. Ms. Ahilan relies on David and Allstate Insurance Company of Canada⁷ where the arbitrator ruled: “the test for the production of a document is relevance ... Relevance depends directly on the facts in issue in any particular case ... To be logically relevant, an item of evidence ... must simply tend to ‘increase or diminish the probability of the existence of a fact in issue.’”

Ms. Ahilan submits that it is clear from the test as set out above that the issues in dispute are an integral part of determining whether a document or other production is relevant. The test of relevance is to ensure that the net is not cast too widely with respect to productions in either temporal terms or types of documents. A request must be reasonable and to be reasonable it must be relevant to an issue in dispute and have probative value in determining issues or facts at a hearing.

Ms. Ahilan submits that an employment file may be relevant to an arbitration proceeding where income replacement benefits or a s. 24 assessment expense about an applicant’s ability to work is at issue. In these circumstances, an employment file may be prima facie relevant and an applicant would have to show how the requested documents are not relevant. When there are no such claims, the party requesting the documents has the burden of showing that the documents or information requested are relevant as they are not prima facie relevant. Ms. Ahilan submits that no claims for income replacement benefits have been made and no s. 24 assessments were conducted to address Ms. Ahilan’s abilities at work.

The probative value of the employment file is diminished as there have been extensive assessments done, as documented earlier, with respect to all benefits claimed. Those assessments directly address the test for benefits under those claimed. Ms. Ahilan enumerated the assessments as listed below.

On August 18, 2008, Dr. Aria Sanei completed a Disability Certificate addressing Ms. Ahilan’s medical/rehabilitation, caregiving and housekeeping needs.
On September 21, 2008, Dr. Antonio Ventrella completed a s. 24 in-home assessment and Form 1 which addressed Ms. Ahilan’s medical/rehabilitation, housekeeping and attendant care needs.
On September 25, 2008, Dr. Hank Frazer conducted a s. 42 psychological paper review addressing Ms. Ahilan’s need for a psychological assessment.
On November 21, 2008, Dr. Sam Calicchia performed a s. 24 Functional Abilities Examination which addressed Ms. Ahilan’s caregiving needs.
On November 21, 2008, Dr. Andrew Shaul and Helen Ilios conducted a psychological assessment and produced a report on December 2, 2008 which addressed Ms. Ahilan’s medical/rehabilitation needs.
On December 9, 2008, Dr. Ian Derby conducted a s. 42 File Review addressing Ms. Ahilan’s need for a neurological assessment.
On January 15, 2009, Dr. Saranjit Khaira completed a Disability Certificate addressing Ms. Ahilan’s medical/rehabilitation, caregiving and housekeeping needs.
On January 24, 2009, Dr. Salim Esmail conducted a s. 24 orthopedic assessment addressing Ms. Ahilan’s injuries and medical/rehabilitation needs.
On January 24, 2009, Janet Njelesani, an occupational therapist, conducted a s. 42 in-home activities of daily living assessment which addressed Ms. Ahilan’s medical/rehabilitation, housekeeping and caregiving needs.
On February 22, 2009, Dr. Antonio Ventrella completed a s. 24 in-home follow up assessment and Form 1 addressing Ms. Ahilan’s medical/rehabilitation, housekeeping and attendant care needs.
On February 22, 2009, Dr. Antonio Ventrella completed a s. 42.1 Rebuttal Assessment report with respect to the s. 42 in-home assessment of Janet Njelesani, occupational therapist, addressing Ms. Ahilan’s continued caregiving and housekeeping needs.
On April 13, 2009, Dr. Antonio Ventrella completed a s. 24 assessment of attendant care needs report and Form 1 addressing Ms. Ahilan’s medical and attendant care needs.
On May 9, 2009, Dr. Karen Hudes completed a s. 42 chiropractic assessment addressing Ms. Ahilan’s medical/rehabilitation needs.
On May 14, 2009, Dr. Shafik Dharamshi conducted a s. 42 general practitioner paper review addressing Ms. Ahilan’s need for a chronic pain assessment.
On July 15, 2009, Dr. Saranjit Khaira completed a Disability Certificate addressing Ms. Ahilan’s continued caregiving and housekeeping needs.

Further, Ms. Ahilan submits that authorizations allowing State Farm to access medical records including the treating facility, family doctor and OHIP records were forwarded to State Farm’s representative on September 9, 2010. Thus, Ms. Ahilan submits that the relevant and probative documents and records are already available to State Farm.

Finally, Ms. Ahilan points out that no statutory declaration or examination under oath was requested by State Farm. These mechanisms for adjusting the file may have provided a foundation for a request for the employment file. As they do not form part of the record, State Farm has foregone an opportunity to identify specific relevant documents or the basis for their production request. It appears to Ms. Ahilan that State Farm is fishing for unwarranted disclosure of irrelevant documents at a late stage in the process.

CONCLUSION

There are sufficient and ample records available to State Farm with respect to the issues in dispute. State Farm has failed to establish the relevance and probative value of Ms. Ahilan’s entire employment file.

Ms. Ahilan has provided to State Farm permission to obtain the relevant medical documents. Much of the information State Farm seeks in the employment file is found more directly in the medical records of Ms. Ahilan. As such, if there are “doctor’s notes”, the more appropriate place to seek production of those records would be in the medical files which Ms. Ahilan has agreed to produce already.

The information on “modified duties” or assistance available to Ms. Ahilan at her workplace is also of little probative value. There is already an extensive record of her abilities to perform the tasks associated with housekeeping, personal care and caregiving activities. State Farm indicates that under Practice Note 4 of the Code, employment records are relevant where disability benefits are in dispute. In fact, Practice Note 4 indicates only that certain documents from an employment file may be relevant and not that an entire employment file may be relevant. The only example given in Practice Note 4 is a job description, which would be of no relevance to the claims made in the case before me.

I was not persuaded that Ms. Ahilan should be ordered to produce her entire employment file. Not only did Ms. Ahilan not make a claim for income replacement benefits, but there is adequate medical documentation from a multitude of assessments to address the entitlement questions relating to her claims. Therefore, the request for production of her employment file fails to meet the tests of relevance and reasonableness.

December 13, 2010

Judith Killoran Arbitrator

Date