Zhenling Yan v. State Farm Mutual Automobile Insurance Company, 2014 ONFSCDRS 142

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

Neutral Citation: 2014 ONFSCDRS 142

FSCO A12-004991

BETWEEN:

ZHENLING YAN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: Alan Mervin

Heard: By motion in writing and telephone conference call on November 8, 2013.

Appearances: Wendy H. Sokoloff for Mr. Yan Sharon C. Dagan for State Farm Mutual Automobile Insurance Company

Issues:

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?

Result:

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.

Background:

The Applicant, Zhenling Yan, was injured in a motor vehicle accident on August 19, 2009. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm paid weekly income replacement benefits from August 26, 2009 to November 2, 2010, when it terminated the income replacement benefit. The parties were unable to resolve their disputes through mediation, and Mr. Yan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

As a result of the accident in question, the Applicant’s alleged injuries included (but were not limited to) whiplash, sore neck, tinnitus, anxiety, headache and insomnia, as noted in a disability certificate (OCF -3) dated November 12, 2010² by Dr. Benson Lau. His complaints remain ongoing.

Mr. Yan was examined by Dr. Zeldin, an orthopaedic surgeon, who conducted an insurer examination (“IE”) arranged by State Farm on October 18, 2010. In his report, he concluded that Mr. Yan did not suffer a substantial inability to perform the essential tasks of his pre-accident employment.³

Based on Dr. Zeldin’s opinion, State Farm terminated the IRB payments as of November 2, 2010.

The IE in October of 2010 by Dr. Zeldin was the only IE conducted with the purpose of addressing the IRB issue.

Mr. Yan subsequently applied for mediation of this issue, and a Report of Mediator was issued dated May 23, 2012.

A second mediation with respect to other issues in dispute was submitted and a Report of Mediator dated January 29, 2013 was issued. The additional issues from the second mediation were added to the Arbitration, on or about April 23, 2013.

Multiple IEs were conducted with respect to the other benefits claimed between September 2010 and August 2012; four IEs were conducted post-104 weeks, including a psychological re-assessment by Dr. Louise Koepfler. However, none of the additional IEs addressed the IRB issue.

As pre-104 week IRBs were terminated on the basis of Dr. Zeldin’s report, which found that Mr. Yan did not meet the less stringent pre-104 week test, the Insurer apparently did not seek to conduct further post-104 week IEs, based on the information it had available, until August 29, 2013.

Under cover of letter dated August 29, 2013, State Farm sent six letters to Mr. Yan requesting attendance at six separate insurer examinations, for the stated purpose of assessing the Applicant’s entitlement to Income Replacement Benefits.

On September 12, 2013, Sokoloff Lawyers wrote to the Insurer requesting that the examinations set up for Mr. Yan be cancelled. The letter advised that Mr. Yan would not be attending at any of the insurer examinations. That letter stated that the reasons for not producing the Applicant for the scheduled examinations were, that since the denial of income replacement benefit October 26, 2010, the Insurer had not reinstated the income replacement benefit or set up more insurer examinations; that the Insurer has failed to agree to pay IRBs since mediation; and now IRB is one of the issues for the upcoming Arbitration.⁴

Timing of Document Production:

Dutton Brock, solicitors for State Farm, advised the Applicant of its retainer by way of letter dated September 27, 2012 and filed the Insurer Response to the Application for Arbitration. The Response was dated October 12, 2012.⁵

Schedule C of the Response listed State Farm’s production requests for medical records and was served on the Applicant on November 21, 2012 by mail. An amended Schedule C containing the original requests and an additional request for Tax returns and Notice of Assessment from 2009 to 2012, was sent to the Applicant on April 15, 2013.

The majority of the productions requested by State Farm were still outstanding at the pre-hearing, which was scheduled for and conducted on June 20, 2013. State Farm made written requests for these productions to Sokoloff Lawyers, both in the Schedule C, amended Schedule C, and in follow-up request letters dated April 9, 2013, April 15, 2013 and May 22, 2013 respectively.⁶ Sokoloff lawyers did not respond to these requests.

The pre-hearing dealt with the various outstanding production requests.

On June 28, 2013, a week after the pre-hearing, the Applicant delivered numerous medical records and documents which had been agreed upon at the pre-hearing under cover of letter of that date.⁷

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.

Most if not all of these documents had been requested in Schedule C of the Insurer’s Response to the Application for Arbitration.

The documents delivered on June 28, 2013 contained various pre and post-accident clinical notes and records of several treating and consulting practitioners.

The productions included a copy of the recent psycho-vocational/rehabilitation evaluation report of Dr. Scherer, Rehabilitation and Vocational Psychologist, dated May 22, 2013.⁸

The clinical notes and records of Dr. Lau, the family physician, were also produced. They contained various WSIB documents which he completed prior to the motor vehicle accident (as Mr. Yan had apparently sustained injuries as a result of a work-related accident in January 2009), as well as records produced by Mr. Yan’s treating physicians including Dr. Majl, neurologist, Dr. Maier, of the Toronto Headache and Pain Clinic, Dr. Grant, orthopaedic surgeon, Dr. Rajendra, psychiatrist, and Dr. Picard, psychiatrist and neurologist. ⁹

Dr. Picard’s documents indicated that ongoing complaints were made by the Applicant of pain, headaches, tinnitus, insomnia, and psychological problems.

Dr. Scherer’s report of May 22, 2013 concluded that the Applicant was not employable on either a part or full-time basis, and Dr. Lau’ s records also contained a letter under his signature and dated June 3, 2013 indicating that the Applicant has not been able to carry out any employment since the motor vehicle accident.¹⁰

Various additional medical records of treatment providers with respect to the January 2009 work-related accident were produced by the Applicant under cover of letter dated September 24, 2013, and given to the Insurer on September 27, 2013.¹¹

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 the Applicant, and were noted as an issue in dispute at the arbitration. In fact, Mr. Yan had expressed his intention to seek post-104 week IRBs throughout the mediation stage, in the Application for Arbitration, and at the pre-hearing, which had taken place after the passage of the two-year mark.

At no time did the Insurer ever suggest it required further insurer examinations to assess post-104 week IRBs, prior to the requests for IEs which are the subject of this motion.

The Insurer Examination Requests

Upon receipt and review of the new medical documentation, under cover of letter dated August 29, 2013, State Farm sent notices requesting that Mr. Yan attend six separate insurer examinations, for the stated purpose of assessing the Applicant’s entitlement to Income Replacement Benefits.

It is the Insurer’s position that the large volume of late medical productions triggered the requests for further IEs; the Applicant suggests that the requests were made to bolster the defence case at arbitration.

The examinations initially requested were:

A vocational assessment by Teri Pereira, Vocational and Rehabilitation Consultant and Vocational Evaluator, on September 26, 2013;
A chiropractic examination by Dr. Leontidis, Chiropractor, on September 14, 2013;
A psychiatric evaluation by Dr. Joel Jeffries, Psychiatrist, on October 4, 2013;
A neurological examination by Dr. Felix Tyndel, Neurologist, on October 24, 2013;
An examination by Dr. Castillo, ENT, on September 25, 2013; and
An orthopaedic examination by Dr. Boynton, Orthopaedic Surgeon, on September 17, 2013.

With respect to the notices served, the Applicant took issue with the form of the notices provided by State Farm, in that 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.”

In my view, the description in the notices was sufficient to advise the Applicant of the purpose of the requested examinations, and was in compliance with the requirements of subsection 44(5) of the SABS.

Mr. Yan refused to attend the scheduled insurer medical examinations.

After receiving the additional medical productions on September 27, 2013, State Farm again requested Mr. Yan’s attendance at five rescheduled IEs under cover of letter dated September 27, 2013; these were:

A vocational assessment by Teri Pereira, Vocational and Rehabilitation Consultant and Vocational Evaluator;
A functional abilities evaluation by Dave Fulger, Kinesiologist;
A psychiatric evaluation by Dr. Joel Jeffries, Psychiatrist;
A neurological examination by Dr. Felix Tyndel, Neurologist;
An orthopaedic examination by Dr. Erin Boynton, Orthopaedic Surgeon.

It would appear that State Farm at that time no longer required the ENT assessment or the chiropractic assessment which had been previously requested, but now requested a functional abilities evaluation.

Mr. Yan refused to attend these further assessments. State Farm then brought this motion.

Insurer examinations were again rescheduled to take place between February 5, 2014 and February 18, 2014. According to the Supplementary Factum of the Insurer, the latest examinations now requested are:

A vocational assessment by Teri Pereira, Vocational and Rehabilitation Consultant and Vocational Evaluator;
A functional abilities evaluation by Dave Fulger, Kinesiologist;
A psychiatric evaluation by Dr. Stanley Debow, Psychiatrist (as Dr Joel Jeffries, Psychiatrist was unavailable at the time);
A neurological examination by Dr. Felix Tyndel, Neurologist;
An orthopaedic examination by Dr. Erin Boynton, Orthopaedic Surgeon;
An examination by Dr. Castillo, ENT, on September 25, 2013

Because of ongoing delay, and through no fault of the parties, these appointments could not be kept, as a decision on this motion had not yet been issued.

In its motion, State Farm has asked for an Order staying the arbitration hearing which was scheduled for May 2014, now adjourned to November 17-20, 2014, until such time as the Applicant attends the IEs.

EVIDENCE AND ANALYSIS:

The Law:

Subsection 44(1) of the SABS provides that, as often as is reasonably necessary, an insurer may require an insured person to be examined by one or more regulated health professionals to assist the insurer to determine if the insured person is, or continues to be, entitled to a benefit.

There is an abundance of jurisprudence that focuses on factors to be considered by the arbitrator in deciding these types of motions.

In State Farm and Ramalingam¹², the Director’s Delegate concluded that the following factors should be taken into account by the arbitrator in deciding whether the IEs requested are reasonable and necessary. The enquiry should focus mainly on the objective factors identified in numerous decisions, including:

the timing of the request, especially whether it will require the hearing to be adjourned;
whether the claimant disclosed relevant materials as soon as reasonably possible in accordance with the Dispute Resolution Practice Code and whether the insurer made its IE request as soon as it reasonably determined the need for the examination;
what other information is available to the insurer, including information provided by the claimant and the number, nature and date of previous insurer examinations;
whether information provided by the claimant since the insurer’s last insurer examination suggests a new diagnosis, a change in the claimant’s condition or a new direction in medical investigation of it;
whether there is a reasonable nexus between the requested examination and the insured person’s injuries;
whether the insurer accepts the claim and continues to pay benefits; and
generally whether the request is reasonable considering the balance between the insured person’s right to privacy and the insurer’s ongoing right and obligation to assess the claim.

Similarly, Sabet and Allstate¹³ again states the factors to be considered. Arbitrator Lee, in Sabet, then states that;

It is well-established that the onus is on the insurer to prove that the insurer’s medical examinations it requests are reasonable and necessary.

In Bogic and AXA,¹⁴ the Arbitrator listed the factors to be considered when evaluating the reasonableness of insurer examinations, and made the following comments;

Where there is a claim for on-going benefits, and a lengthy period of time has transpired since the most recent examination, it is fair, and hence reasonable for an insurer to request further examinations in order to evaluate an applicant’s claim. Further examinations are also reasonable where there have been changes in the nature of the insured person’s medical or psychological condition which are relevant to his or her disability claim. However, it is unreasonable to request an examination where circumstances indicate that its only apparent purpose is to acquire medical evidence to bolster the insurer’s case at a hearing. [emphasis in original and footnotes omitted]

In Glynn and General Accident Insurance Company¹⁵, the insurer acted reasonably promptly once it received new information about the applicant's condition. Its delay in scheduling the assessments in question was explained by the applicant’s failure to produce relevant medical records.

At the pre-hearing, the insurer raised the possibility that it might require further assessments, but indicated that it would not make a final decision until it received complete disclosure of the relevant medical records. It diligently followed up on productions, stressing the need for urgency, but the documents in question were never produced by the applicant. In these circumstances, the Director's Delegate felt it unfair to hold the delay against the insurer and, on appeal, she overturned the original decision and granted the insurer’s motion.

State Farm’s Submissions:

State Farm submits that its request for the IEs are reasonable and necessary, and arise from the insurer’s obligation to assess the applicant’s condition and entitlement to benefits on an on-going basis.

The motor vehicle accident occurred on August 19, 2009; the two-year mark was reached on August 19, 2011. Since the initial IE of Dr. Zeldin’s report dated 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.

Because the test for entitlement changes at the two-year mark, State Farm argues that it is reasonable and necessary to have Mr. Yan attend these new examinations to assess his entitlement to post-104 week IRBs.

State Farm submits that it is entitled to these examinations, as they are reasonable and necessary; that the test for post-104 week IRBs is different and that no insurer examination has taken place with respect to post-104 week IRBs; that the lateness of the request of these IEs is due to the Applicant’s delay in producing the requested medical information, which fully disclosed the psychological component of the Applicant’s disability in relation to the claim for ongoing IRBs; that in any event, the requests were made and the examinations could have been completed without delaying the hearing: and that the IEs were necessary to ensure a full and fair hearing.

In the Supplementary Motion Record submitted by State Farm, paragraph 7 of the Supplementary affidavit of David Raposo dated October 24, 2013 states that, “with the exception of two clinical notes of Dr. Majl, Neurologist from September 8, 2011, and October 24, 2011, all of the medical documentation provided by or on behalf of the Applicant to the Insurer as contained in Schedule “B” was from the first 104 weeks after the accident. In addition the Insurer did not have any pre-accident medical documentation in its file at the that time”

State Farm 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 the Applicant had previously been assessed by the Insurer only for pre-104 week IRBs by an orthopaedic surgeon based on information the Insurer had at the time.

For the Applicant to say that the Insurer made a conscious choice at the time to not request further IEs is disingenuous, ignoring the aspect of the Applicant’s delay in providing the requested medical documentation to the Insurer by the Applicant.

The Applicant’s Submissions:

In response, the Applicant argues that the timing of the request and the position and approach of State Farm through its carriage of the file demonstrate that the requests have nothing to do with its ongoing obligation to assess Mr. Yan’s continued entitlement to benefits.

State Farm terminated payment of IRBs in November 2012 on the basis of Dr. Zeldin’s report, well before the two-year mark.

The Applicant submits that he had 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.

The Applicant submits that the Insurer was well aware that the Applicant was seeking post-104 week IRBs based on physical and psychological grounds and correspondence which was sent to the Insurer long before the medical productions.

The Applicant submits that the Insurer made a conscious choice in not requesting additional insurer examinations earlier on, and that State Farm’s current request on the basis of the recent disclosure of documentation is misleading.

The Applicant submits that State Farm has known about the Applicant’s complaints and the types of specialists that he has seen for some time.

In the affidavit of Lydia Zhou contained in the Applicant’s motion record, it is stated that the Applicant wrote to State Farm on November 18, 2011 enclosing an OCF-3 from the Applicant’s family doctor, Dr. Benson Lau. The OCF-3 noted Mr. Yan’s injuries as whiplash, tinnitus, anxiety, headache and insomnia. Dr. Lau stated that the Applicant could not concentrate and was referred to a neurologist for numbness in his left arm.

The Applicant further submits that on August 29, 2011, the Applicant wrote again to State Farm enclosing medical documentation and noted in that letter that the Applicant was disabled both physically and mentally as a result of the accident.

The Applicant also submits that, after terminating IRBs and after the two-year mark, the Insurer did in fact conduct four IEs, with respect to other benefits, one of which was a psychological assessment by Dr. Louise Koepfler, Psychologist. Dr. Koeplfler was not asked and did not address the issue of IRBs.

The Applicant submits that Sabet is determinative, as it is essentially the exact situation as in the present case. The Applicant submits that in Sabet, the applicant was involved in an accident on January 9. 2003, with IRBs terminated July 18, 2003, well before the two-year mark. Nothing more was done by the insurer until it sent notices of examination on August 11, 2006, after the pre-hearing in July 2006, and in advance of an arbitration scheduled for the Spring of 2007.

The Applicant submits that this is essentially the same situation as in the case at bar, and that State Farm is now requesting these examinations to prepare for the arbitration, and not to adjust the claim.

ANALYSIS:

Are the Insurer Examinations requested reasonable and necessary?

I agree it would be unfair to allow these IEs simply to bolster the Insurer’s case against the Applicant; I do not find that to be the case in this matter.

However, I disagree with the Applicant’s submission that this case is exactly like Sabet.

I find the present case to be similar to the situation in Glynn.

While it is true that the request for additional IEs to assess post-104 week IRBs came late in the proceedings, as the date for the arbitration was approaching and well after the two-year mark had passed, it is also true that at the pre-hearing, it was clear that the Insurer had been, and still was seeking production of various documents for some time, having written several request letters without success.

The Applicant states that the Insurer knew about the psychological and neurological component of the post-104 week IRB claim, because it had so advised the Insurer in correspondence. However, little documentation in support of this claim was sent to the Insurer until the mass production of June 29, 2013. In essence, although these documents for the most part had been in existence for some time, they were new evidence from the Insurer’s perspective. The medical documents revealed additional conditions, and yielded previously unavailable information on existing conditions that needed to be addressed, which prompted the request for additional insurer examinations.

While I understand that parties have strategic reasons for their methods of production, in this case the late production of a large volume of medical information all at once, made the need for additional IEs apparent upon review of the medical documentation. The requests were made promptly after delivery of the medical documentation to the Insurer, and well in advance of the hearing date, providing ample time for the Applicant to attend at the IEs without compromising the hearing date already set.

While the Applicant complied with the undertakings given at the pre-hearing for production of outstanding documents in a timely manner, I note that the Insurer had been requesting these documents for several months prior to the pre-hearing.

A letter dated May 22, 2013, from Insurer’s counsel, which further followed up the outstanding requests, stated that

We require copies of these productions in order to better assess this file and we would request that these productions be sent to us prior to the pre-hearing scheduled to take place on June 20, 2013.¹⁶

That letter was not responded to.

I also refer to Rule 32 of the Dispute Resolution Practice Code, which deals with the exchange of documents prior to the pre-hearing, which reads as follows:

32.1 At least 10 days before the pre-hearing discussion, each party must:

(a) exchange all documents identified in the Application for Arbitration and the Response by Insurer, or explain why a document has not been provided;

(b) establish reasonable time frames for the exchange of any remaining documents;

(d) file a list of outstanding document requests and identify any disputed items.

32.2 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.

Document exchange should be complete to the extent possible, prior to the pre-hearing, so that the parties can have principled settlement discussions, and resolve production disputes at the pre-hearing.

Had the Insurer been provided the requested medical documentation prior to the pre-hearing, and then did not raise the issue of additional IE’s based on the new documentation at the pre-hearing, I would be less sympathetic to the request for the additional IEs.

In this case, the bulk of the medical documentation necessary to properly assess this case was not delivered until after the pre-hearing.

One of the factors to consider when deciding if further examinations are reasonable is whether there have been changes in the nature of the insured person’s medical or psychological condition which are relevant to his or her disability claim.

In my view, the Insurer would be unable to make a full assessment of the Applicant’s condition until it received the relevant medical documentation.

The Insurer has an ongoing responsibility to adjust the file. The receipt of a large volume of new medical information almost certainly would cause the Insurer to take another look at its assessment of the file with the benefit of new medical information not available in the past.

The Insurer submits that the request for the additional IEs was triggered by the delivery of the medical productions. The Insurer, upon receiving the requested information, wasted no time in requesting further IEs; if these requests were made late in the day, the bulk, all-at-once production by the Applicant of the requested information was certainly a factor in the timing of the requests.

And while the Applicant submits that the Insurer had some knowledge of the psychological component of the post-104 week IRB claim, the documentation it had received prior to the pre-hearing touched only peripherally on this issue. It is not difficult to find that the need to respond to the post-104 week IRB claim did not become clear until the productions were received and reviewed which then triggered the request for further IEs to address this issue.

I do not accept the Applicant’s submission that the sole reason the IE requests were made was to defend the action, and that the Insurer had no interest in adjusting the file.

The Insurer’s letter of May 22, 2013, requesting the outstanding medical productions, explicitly states that the documents were required to further assess the file.

I agree with the Insurer’s stated position that, once this documentation was produced, in keeping with the Insurer’s right and obligation to continue assessing the Applicant’s ongoing claim for IRBs, it is necessary that these documents be reviewed and addressed by the Insurer’s post-104 week assessors.¹⁷

I therefore find 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.

Number of Insurer examinations:

In reviewing the motion materials initially submitted by the Insurer, six insurer examinations, as listed above, are requested.

The responding materials of the Applicant state the issue as being, “Whether the arbitration should be adjourned until such time as the Applicant attends five insurer examinations required by the Insurer.”

Noted above, the initial requests made, resulting in the refusal and the subsequent examination requests made by the Insurer, again resulting in refusal, are similar but differ somewhat from the examinations requested in this motion.

The Insurer is now requesting six insurer examinations: five examinations by the practitioners as stated in the request letters of September 27, 2013, and an additional examination by Dr. Boynton, orthopaedic surgeon.

While I have determined that the Insurer is entitled to conduct additional insurer examinations, I find that six further examinations at this time are excessive.

The Insurer has conducted orthopaedic examinations in the past, and reached its conclusion based on the existing report. I do not find an additional orthopaedic examination at this point is reasonable or necessary.

Similarly, I note that in the letter of September 27, 2013, requesting the Applicant’s attendance at additional IEs, there was no request for an ENT examination at that time. I do not see the need for such an examination based on the materials before me and I do not find this examination to be reasonable and necessary.

I find that four fresh IEs are appropriate: a psychiatric examination, a vocational assessment, a functional abilities evaluation and a neurological assessment. The need for these examinations arose upon review of what can be considered new evidence, not available to the Insurer until at least June 29, 2013, after the pre-hearing, and well after the two-year mark had passed.

The functional abilities evaluation and vocational assessment are reasonable and necessary to address the recent psycho-vocational report of Dr. Scherer, dated May 22, 2013.

The psychiatric and the neurological examinations are reasonable and necessary to address the reports of the treating doctors revealed in the June 29, 2013 productions.

The Insurer has not conducted these assessments, and ought to be able to respond to the findings of the Applicant’s assessors.

These four examinations should be sufficient to address the issues raised in the medical productions.

In a letter dated November 7, 2013¹⁸, addressed to FSCO, submitted by Adam Morass on behalf of the Applicant and serving as a response to recently filed written materials by the Insurer in support of its motion, the Applicant states that, if the Insurer really believed its position that it simply wishes to assess the Applicant’s post-104 IRB entitlement, it would immediately pay IRBs up to the present with interest; and, should I order that any insurer examinations are reasonable, such that the arbitration be stayed pending the Applicant’s attendance, that IRBs be paid up to the release of any report, including interest.

I see no basis for such an order at this time, either in the materials submitted, or in any oral submissions made, and I am not prepared to make such an order. Entitlement to post-104 IRBs is a major issue in dispute in this arbitration; to allow payment of this benefit, without a full and fair hearing, would be unfair, and is best left in the discretion of the hearing arbitrator.

The Employment File:

The issue of production of the complete employment file of the Applicant from 2006 onward (when the Applicant began working at Inmet) was discussed at the pre-hearing; the Applicant refused to produce that file on the ground that it had no relevance to this claim, as it was a “fishing expedition.” The Insurer continues to request that file, and it forms part of this motion.

The Insurer takes the position that it is relevant as there is an indication of a prior work-related accident earlier in 2009 in which the Applicant sustained an injury. The Insurer takes the position that it is entitled to production of the employment records three years prior to the accident, as they are relevant to assess the Applicant’s entitlement to IRBs.

In reviewing Dr. Lau’s clinical notes and records produced, there is mention of some modified duties at work because of injuries suffered by Mr. Yan.

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.¹⁹

As a rule, relevance is determined with reference to the issues in dispute.

Arbitrator Bujold, in Bartlett and RBC General, stated that, “I further note that employment files are routinely produced where entitlement to IRBs is in dispute, and I find no reason to depart from the standard practice in this case.”²⁰

I find that the clinical notes and records of Dr. Lau 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, I see no reason why they should not be ordered in this case.

However, nothing has been advanced by the Insurer to support its request for the complete file three years prior to the accident, except that Mr. Yan started his employment at Inmet in 2006. I do not find that this fact is sufficient reason to go back further than one year prior to the motor vehicle accident.

EXPENSES:

The issue of expenses is deferred to the discretion of the hearing arbitrator. In the event the matter does not proceed to hearing, I would request the parties resolve the issue themselves, failing which they may request an expense hearing before me in accordance with the Dispute Resolution Practice Code.

August 28, 2014

Alan Mervin Arbitrator

Date