Request for Insurer Medical Examination Comes Too Late
The Applicant, Subashini Yogesvaran, was injured in a motor vehicle accident on May 13, 2007. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company, payable under the Schedule. State Farm terminated weekly income replacement benefits on January 16, 2008. She claimed that State Farm had failed to comply with section 37 of the Schedule when it terminated her income replacement benefit.
The Arbitrator found that from very early on in the process State Farm had more than ample notice that Mrs. Yogesvaran was claiming post-104 benefits. This is evidenced by the fact that Mrs. Yogesvaran's made this claim in her Application for Arbitration, dated May 22, 2008. Moreover, the February 19, 2009 letter confirmed that the post-104 test was an issue for the arbitration hearing.
Before State Farm terminated Mrs. Yogesvaran's income replacement benefit effective January 16, 2008 it had already obtained a report from Dr. O dated January 2, 2008 wherein he opined that Mrs. Yogesvaran did not meet the post-104 test.
In its March 19, 2009 referral letter to Dr. W, State Farm specifically asked him to comment on the post-104 test.
At the commencement of the arbitration on July 6, 2009, there was no indication from State Farm that it could not precede on the post-104 test because it did not have any adequate insurer's examinations on this issue. It was not until April 1, 2011 that State Farm, for the first time, made a request for an insurer's examination based on a change of circumstances.
On April 8, 2011 Mrs. Yogesvaran gave timely notice that she would not attend the insurer's examinations. Instead of immediately requesting a hearing for a motion in respect of whether Mrs. Yogesvaran should attend the insurer's examinations, State Farm waited eight months until the eve of the December 19, 2011 arbitration hearing, to make its request.
On the facts of this case, the Arbitrator found it completely unreasonable that the insurer should have waited until the eve of the resumed arbitration hearing to bring its motion to stay the proceedings and suspend the interim order for income replacement benefits until Mrs. Yogesvaran attended a section 44 insurer's examination, because of a change in circumstances.
While the Arbitrator fully accepted State Farm's submission that procedural fairness requires that a party be able to respond to the position taken against it, the Arbitrator found that State Farm failed to respond in a timely manner. The Arbitrator found it also failed to provide any explanation, whatsoever, why it did not do so. The Arbitrator found that this lengthy delay in requesting an insurer's examination was unreasonable in the circumstances of this case.
Furthermore, the Arbitrator found if there is any procedural unfairness in this case it is the unfairness caused to Mrs. Yogesvaran. The Arbitrator found that that State Farm's actions have strongly prejudiced Mrs. Yogesvaran in this arbitration process. It has significantly delayed her ability to have her case heard in a timely and expeditious manner.
Accordingly, for these reasons, the Arbitrator found that, pursuant to section 44 of the Schedule State Farm is not entitled to any insurer's examinations in this arbitration hearing. Accordingly, it follows from this that the arbitration hearing on December 19, 2011, is not stayed, nor is Mrs. Yogesvaran's income replacement benefit suspended.
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