Notion of Proportionality Applies - Insurer Must Produce Adjuster Logs - Annie Chen v Unifund - 17-001476 v Unifund

October 25, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Annie Chen v Unifund - 17-001476 v Unifund Assurance Company, 2017 CanLII 59494 (ON LAT)

Date of Decision: August 16, 2017
Heard Before:  Eleanor White, Vice-Chair

RELEASE OF ADJUSTER LOGS: notion of proportionality; minor catastrophically injured; when balanced with the request from a minor child who is catastrophically injured for clarity of process the request is proportionally fair; the disclosure is deemed relevant to the proceedings

Annie Chen, a minor female, was injured in a car accident on April 5, 2016.  Her mother retained counsel and made an application to the LAT to resolve issues of the child’s entitlement to various benefits including the amount of attendant care she requires, transportation costs to treatment facilities as well as rehabilitation benefits including residential moving costs and rent differential.

This hearing was conducted via the telephone. An in-person hearing in this matter is scheduled for September 27 and 28, 2017. Following the case conference Ms. Chen brought a Motion for an Order compelling Unifund to produce the following documents:

1. All adjuster log notes, electronic and hand written up to the date of Ms. Chen’s application to the Licence Appeal Tribunal; and
2. Copies of all letters written or communications by Unifund to third parties regarding Ms. Chen’s AB claim, including but not limited to service providers, treating physicians and IME assessors.

ARGUMENTS

Ms. Chen states that the documents she seeks are relevant and necessary to her case as they speak to Unifund’s decision making and reasoning on the specific benefits at issue and do not fall under solicitor-client privilege as the request is limited in scope to the period before she filed her application for mediation.

The Case Conference Report and the Order arising from the May 18, 2017 case conference, made no mention of the request for adjuster’s log notes or correspondence between Unifund and the specified clinical providers or assessors.  The report states that the parties required no order regarding disclosure.

An affidavit of a law clerk at the office of the counsel for Ms. Chen states that he had requested, by letter, the adjuster’s log notes and Unifund’s correspondence to third party service providers, treating physicians and IME assessors from Unifund on April 18, 2017 and again on April 26, 2017.  This was prior to the case conference in this matter.

In a letter from Unifund to Ms. Chen, dated May 1, 2017, Unifund specifies that it did not reject the request for adjuster’s log notes, but asked Ms. Chen to explain the justification for her request as well as the authority upon which she was relying, that would support the necessity of producing the requested records.

Ms. Chen, in the Notice of Motion directed the Arbitrator to decisions from the FSCO that found

• third party medical documents to be presumptively relevant and
• adjuster’s notes to be prima facie relevant to the determination of a dispute over benefits arising from an accident

Unifund submitted an affidavit from its confirming the history of correspondence between the parties as well as further correspondence from Ms. Chen dated June 8, 2017, in which they repeated the request, again without adequately responding to Unifund’s position set out in its May 1, 2017 letter, to be advised of the grounds on which the request is being made.  A telephone conversation between the parties occurred the following day and Unifund reiterated its position.

During the hearing, Unifund agreed to produce to Ms. Chen any correspondence of referrals they have sent to third party service providers, treating physicians and IME assessors.  The only remaining issue in this Motion is the production of adjuster’s log notes.

Ms. Chen reiterated her position on the disclosure of the disputed records.  Referring to the case law cited in the Notice of Motion, she stated the adjuster’s notes are considered presumptively relevant up to the date of the application to the Tribunal.  Furthermore, the onus is borne by Unifund to show why it will not produce the records or why the notes are not considered presumptively relevant in this case. 

Ms. Chen’s request for log notes is based on the assertion that the Explanation of Benefits (OCF-9) is insufficient.  Ms. Chen asserts that the OCF-9 is not sufficient to explain why the “substantiated documents provided by Ms. Chen have given rise to the denial”.  Ms. Chen states that her request for the records is based on a desire to know the internal decision-making process which is applied to the approval of the benefits.

Unifund acknowledged that the Tribunal is not bound by FSCO decisions and that these requests are usually discussed at case conferences.  The Adjudicator agreed.

Unifund submits that the possibility of unreasonable behaviour should be in issue from the beginning of the process. It characterizes the request as a fishing expedition.  It submits that Ms. Chen needs to allege ‘bad faith’ before requesting the adjuster`s log notes.  Unifund argues that Ms. Chen has not raised an award (or “special award”) as an issue before the Tribunal related to allegations that Unifund unreasonably withheld or delayed payments pursuant to section 10 of Ontario Regulation 664. Unifund further argues that it has been transparent in its production of Insurer`s Examination reports and all other relevant documentation; that the adjuster`s log notes are confidential to Unifund`s daily business and Ms. Chen has, on a balance of probabilities, failed to demonstrate any need for their production.

The Adjudicator reviewed the case, and the law. In the Notice of Motion and up to the date of the hearing, Ms. Chen maintained her position that she wanted to know how Unifund makes their decisions and that in order to do so, she was entitled to the disclosure of the adjuster’s log notes and the correspondence between Unifund and the third parties involved in the file.

What opportunities are available for an applicant to seek this disclosure within the proceedings of the Tribunal? LAT Rules of Practice and Procedure, version 1 (April 1, 2016) speak, in Rule 14.2, to the scope of case conference subject matter the member may direct.  Among the matters a member may consider are:

(e) Disclosure and the exchange of documents, including witness statements and expert reports; and

(k)  Motions, provided parties have complied with the requirements of this Rule and Rule 15, or

There is ample direction for the member to have discussed the request for adjuster`s log notes.  Common practice in preparing for a hearing would encourage discussion regarding the exchange of outstanding documents or reports and a discussion of any motions being considered by either party.

The Adjudicator reviewed the documents arising from the case conference and did not find any request for an Order for either outstanding documents or any other production, in particular no mention of adjuster’s log notes.  From the records it is apparent that Ms. Chen first raised the issue of disclosure of adjuster’s log notes with Unifund in correspondence and subsequently in her Notice of Motion.  The remaining motion before the Tribunal is whether to order the disclosure of the adjuster’s log notes in this matter and on what basis.

Pursuant to the LAT Rules of Practice and Procedure, a party may seek an order for disclosure on the basis of relevance.  Rule 9.3 (e) states that a party shall ‘disclose any document or thing the Tribunal considers relevant to the issues in dispute’.

Ms. Chen relies on Campeau v. Liberty Mutual to establish presumptive relevance of the adjuster’s log notes and challenges Unifund to show why this should not apply to this case.   Unifund has not rejected the request but has asked for reasons for the disclosure of the log notes.  The Adjudicator agreed that the Tribunal is not bound by FSCO decisions, and has chosen to look at the broader circumstances of this matter.  Ms. Chen is a minor, catastrophically injured.  The substantive issues in dispute to be determined on September 27 and 28, 2017 include attendant care benefits and various medical and rehabilitation benefits.

The test for disclosure is relevance of the log notes to the issues at hand.  Ms. Chen has indicated that she feels the OCF-9 did not provide a sufficient explanation.  As such, Ms. Chen expressed a need to better understand the denial of the disputed benefits, in the face of what they consider substantiated evidence.  The mandate of the Tribunal includes the aspect of proportionality, meaning that we must consider the mechanisms we apply to a proceeding to ensure responsible and fair attention to issues. 

This notion of proportionality can also be applied here, when determining relevance.  The adjuster’s log notes are primarily for internal communications, however are not secret documents.  It is difficult to argue against the relevance of log notes arising from the consideration of the circumstances of the accident and the impairments of the insured in the determination of entitlement to benefits.  The Adjudicator noted that Unifund is also allowed to redact parts of the notes that would be privileged to the insurer.  When balanced with the request from a minor child who is catastrophically injured for clarity of process, the Adjudicator consider the request is proportionally fair in that the disclosure is deemed relevant to the proceedings.

RESULT

1. Unifund will produce the adjuster’s log notes (redacted for privilege) from the accident benefit file in this matter to Ms. Chen forthwith.   

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.