Sivasamboo v. State Farm Mutual Automobile Insurance Company, 2013 ONFSCDRS 65

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

Neutral Citation: 2013 ONFSCDRS 65

FSCO A10-000091 and A10-000092

BETWEEN:

SIVAKUMAR SIVASAMBOO

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION on a MOTION

Before: Jessica Kowalski

Heard: November 29, 2012, at the offices of the Financial Services Commission of Ontario in Toronto.Written submissions completed by December 31, 2012

Appearances: Robert A. Zigler for Mr. Sivasamboo Jeffery Crannie for State Farm Mutual Automobile Insurance Company

This is a motion by State Farm for an order that Mr. Sivasamboo attend certain insurer medical examinations.

Issues:

Are State Farm’s requests that Mr. Sivasamboo attend with a psychologist and a physiatrist reasonable and necessary?
If so, what are the consequences of Mr. Sivasamboo’s failure to attend?

Result:

State Farm’s requests that Mr. Sivasamboo attend with a psychologist and a physiatrist are reasonable and necessary.
This arbitration is stayed pending Mr. Sivasamboo’s attendance at the proposed examinations.

Background:

Mr. Sivasamboo was involved in motor vehicle accidents on October 10, 2007 and January 21, 2008.

State Farm terminated benefits based on a number of assessments conducted by various physicians between September and October 2008, including an orthopaedic assessment, an assessment by a physiatrist, by a specialist in physical medicine and rehabilitation, all of whom found Mr. Sivasamboo not to be disabled and/or capable of performing the essential tasks of his occupation.

Mr. Sivasamboo undertook a number of assessments to respond to those conducted by State Farm, including a functional abilities evaluation, a physiatric assessment, and a psychological assessment (between November 2009 and March 2012).

Since then, the parties have engaged in ongoing, drawn-out attempts to exchange productions, a substantial number of which remained outstanding at the time of this motion. The motion included a request compelling production of clinical notes and records related to Mr. Sivasamboo by sixteen third parties.

Parties’ positions

Mr. Sivasamboo submits that the proposed examinations are tantamount to a defense medical and are primarily for the purpose of brinksmanship, to bolster State Farm’s case at arbitration.

State Farm submits that the examinations are necessary because a large number of productions from Mr. Sivasamboo remain outstanding. The requests, says State Farm, arose as a result of the late production of Mr. Sivasamboo’s decoded OHIP summary in July 2012 that disclosed treatment and healthcare attendances of which State Farm had not previously been made aware.

Attendance reasonable and necessary because of delayed, limited productions

I find that there have been limited productions to date, which have restricted State Farm’s ability to receive a complete picture of Mr. Sivasamboo’s condition and therefore entitlement to benefits.

Based on the dearth of productions, I ordered the hearing stayed until Mr. Sivasamboo’s attendance at the two examinations.

Section 44 of the Schedule¹ authorizes insurer’s examinations as often as is reasonably necessary for the purpose of determining whether an insured person is entitled to a benefit.

Whether an insurer’s examination is reasonably necessary is determined by consideration of a number of factors, including the timing of the request; the number and nature of previous insurer’s examinations; the number and nature of the examinations being sought; whether new issues have been raised in the claim that require evaluation; whether there is a reasonable nexus between the examinations and the injuries; and the possible prejudice to the parties.²

The closer the request is made to a hearing, the more stringent the scrutiny of its reasonableness should be to ensure that there is no avoidable delay or that the insured’s preparation for the hearing is not prejudiced.³ Requests for section 44 examinations should be well in advance of an arbitration hearing. Should an insurer fail to request examinations in a timely manner, it must provide a valid reason for its late request.⁴

When State Farm requested the examinations (in July 2012), the hearing was still far enough away (March 2013) for Mr. Sivasamboo to have attended and obtained any necessary rebuttals, without prejudicing the hearing date. For reasons known only to the parties, the hearing of this motion was delayed from July to November 2012. Even by the time the motion was heard on November 30, 2012, the examinations could have proceeded without prejudice to the parties’ readiness for a March 2013 hearing.

In F.S. and Belair Insurance Company Inc., Director’s Delegate Naylor wrote that determining the appropriateness of a request for an examination requires a balancing of the interests of the parties in the context of the particular facts.⁵ Arbitrators have ruled that the onus is on the insurer to prove that the medical examinations sought are reasonably necessary and that they have been requested to adjust the file in regard to an insured person’s entitlement to benefits, rather than to serve as a means to obtain examinations to bolster the insurer’s case for hearing.⁶

I disagree with Mr. Sivasamboo’s submission that the examinations have been requested overwhelmingly for the purpose of hearing preparation. I find that, leading up to this motion, there were very limited productions that restricted State Farm’s ability to have a full picture of Mr. Sivasamboo’s impairments and entitlement to benefits as a result of one or both of the accidents.

The first pre-hearing in these matters was scheduled for July 28, 2010, before Arbitrator Kominar. On February 1, 2011, after Mr. Sivasamboo filed a second application for arbitration related to the second accident, a pre-hearing took place before me, at which I made an order combining the files.

At the February 1, 2011 pre-hearing, the parties agreed on production exchange, which thereafter appears to have stalled. Since then, there have been at least two resumed pre-hearings scheduled to deal with productions. By the time of this motion, a substantial number of Mr. Sivasamboo’s productions remained outstanding, and I issued an order for production by sixteen third parties because the parties themselves could not identify exactly what had and had not yet been produced.⁷

The production delays in this case became chronic. There were two resumed pre-hearings scheduled, and a resumption and motion were re-scheduled at least once.

State Farm has an obligation to continually adjust a claim, which obligation survives the termination of benefits. In Al-Shimasawi and Wawanesa,⁸ Arbitrator Feldman wrote that the question is whether the examination is being requested for brinksmanship or is it more realistically a request to assess the claim, but that mixed motivation is not sufficient to deny the insurer its section 44 request.

While there may be some motivation in having up-to-date reports for the hearing, in this case, where productions have been so substantially delayed, I find that it is fair to give State Farm the opportunity to assess Mr. Sivasamboo.I find that because of the numerous outstanding productions regarding Mr. Sivasamboo’s medication and treatment, together with information contained in the OHIP summary that was only produced in July 2012, it is both reasonable and fair for State Farm to seek to reassess Mr. Sivasamboo.

May 16, 2013

Jessica Kowalski Arbitrator

Date