April Piche v. Allstate Insurance Company of Canada, 2006 ONFSCDRS 162

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 162

FSCO A05-002263

BETWEEN:

APRIL PICHE

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION

Before: Beth Allen

Heard: September 1, 2006, by teleconference arranged by the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Andrew Kerr for Ms. Piche

Paul Kiddey (standing in for Mr. Ian D. Kirby) for Allstate Insurance Company of Canada

Issues:

The Applicant, Ms. April Piche, was injured in a motor vehicle accident on November 13, 2003. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule.¹ The Applicant seeks an order as to her entitlement to and the amount of income replacement benefits, as well as entitlement to attendant care, housekeeping and rehabilitation benefits. The parties attended a pre-hearing discussion on June 15, 2006 before Arbitrator Stuart Mutch where the issues that are the subject matter of this motion were raised. Arbitrator Mutch scheduled this motion to himself and has since left the employ of the Commission and the matter comes before me for a determination.

Allstate brought this motion to request an order for production of the Applicant's clinical notes and records prepared by her family doctor, Dr. A. Duvall. The Applicant did not dispute the production request and asked Dr. Duvall for the records in question. However, Dr. Duvall failed to produce the complete record. Allstate seeks an order that the Applicant produce the requested medical records, or in the alternative, a third-party order for Dr. Duvall to produce the complete, unedited clinical notes and records. Allstate also seeks its expenses of the motion and Dr. Duvall's expenses, if any, with respect to the clinical notes and records. The Applicant requests, if I order the complete, unedited records, that the pre-hearing arbitrator review the portions deleted by Dr. Duvall and decide, based on relevance, which portions should be produced for the hearing.

The Applicant sought an order setting new dates for the hearing and requested that the Mr. Kiddey confirm Mr. Kirby's availability for the new dates. During the motion, the parties settled the matter of the dates for the hearing and Mr. Kirby's availability on the dates scheduled.

The issues in this motion are:

(a) Is the Applicant entitled to have an arbitrator review her complete, unedited clinical notes and records prepared by Dr. Duvall, to determine whether deleted portions should be produced for the arbitration hearing?

(b) Is Allstate entitled to an order for the Applicant, or alternatively, for Dr. Duvall to produce the Applicant's complete, unedited clinical notes and records from 1995 to date?

Is the Applicant entitled to her expenses of this motion pursuant to subsection 282(11) of the Insurance Act?
Is Allstate entitled to its expenses of this motion pursuant to subsection 282(11) of the Insurance Act?

Results:

(a) The pre-hearing arbitrator will not review the clinical notes and records of Dr. Duvall before the hearing to determine which of the deleted portions should or should not be produced for the hearing.

(b) The Applicant is required to produce a copy of her complete, unedited clinical notes and records of Dr. Duvall from 1995 to date. If required to do so, I will make a third-party order for Dr. Duval to deliver those records to the Applicant.

I defer the determination of both parties' expenses of this motion, including any expenses incurred by Dr. Duvall in the reproduction of the Applicant's clinical notes and records, for the determination of the hearing arbitrator.

REASONS FOR DECISION:

Dr. Duvall's Clinical Notes and Records

Dr. Duvall diagnosed a WAD II injury, thoracic and lumbar spine sprain/strains with radiculopathy to the left leg; and panic attacks, driving phobia, post-traumatic stress disorder, adjustment disorder, anxiety and depressed mood as conditions resulting from the accident.

The Insurer's counsel made a request in a letter dated November 30, 2005 for the Applicant's complete clinical notes and records prepared by Dr. Duvall pertaining to the Applicant from 1995 to date. In a letter to the Insurer's counsel dated January 6, 2006, the Applicant's counsel acceded to the request. However, by letter to the Applicant's counsel dated February 2, 2006, Dr. Duvall stated that he had, apparently at the Applicant's request, deleted several areas of what he called "personal information of a confidential nature" that "did not directly apply to the motor vehicle accident." He provided an edited version of the clinical notes and records from 1993 to November 24, 2005, although records were only requested from 1995. In his written submissions in support of this motion, the Applicant's counsel provided a list of the portions in Dr. Duvall's clinical notes and records that he thought had been deleted by Dr. Duvall. It appears from the list that the deleted portions are sporadically scattered throughout the records from 1993 to November 24, 2005.

Allstate requests that I exercise my authority under Rule 67 of the Dispute Resolution Practice Code (4th Edition, Updated October 2003) (the "Code") to make a preliminary order for the production by the Applicant of a copy of the complete, unedited clinical notes and records; or alternatively, a third-party order for Dr. Duvall to produce a copy of the complete, unedited clinical notes and records. Allstate submits that medical information pertaining to both the Applicant's pre- and post-accident health are relevant to the issues in dispute.

The Applicant argues she should not be required to produce private and confidential medical information that is not relevant to the motor vehicle accident of November 13, 2003. She requests that the pre-hearing arbitrator review the clinical notes and records before the hearing to assess the relevance of the deleted portions for the purposes of determining their production for the hearing. The Applicant argues that the pre-hearing arbitrator would best undertake this review owing to their neutrality in the arbitration process.

Conclusion:

After considering the parties' submissions, I decide as follows:

I looked to the decision of the Ontario Court of Appeal, Cook v. Washuta (Cook v. Ip; Cook v. Ip et al.)² for guidance on this issue. Cook considered the question of the privacy and confidentiality of medical records and the relevance of those records in a personal injury action. That case held: "No doubt medical records are private and confidential in nature. Nevertheless, when damages are sought for personal injuries, the medical condition of the plaintiff before and after the accident is relevant."

The Commission considered circumstances where medical harm might result to the Applicant if certain medical information were produced. The arbitrator in Z. v. Dominion of Canada General Insurance Company³ found that the probative value of the clinical notes and records of the applicant's psychologist would be outweighed by the harm to her health that would result to the Applicant if the records were produced.

The Applicant in the case before me did not present evidence of any medical harm that she could suffer as a result of the production of her complete medical records. As I understand it, she is concerned with privacy of the information and the relevance of the deleted portions to the issues in dispute. While I appreciate the Applicant's concern over the privacy of her personal health information, it is a reality - when an insured person makes a claim against an insurance company for compensation for a medical injury and a dispute over the claim results in a legal action - that a person's medical status becomes an area of relevant inquiry. In circumstances where the complete record is disclosed, it is often the case that aspects of the medical record may ultimately turn out to be more or less significant in the final determination of the Applicant's claims.

I find that the principle stated in Cook is applicable in these circumstances.

In my position as the pre-hearing arbitrator, I am reluctant to take up the Applicant's request that I pick through the deleted portions of the record and decide which of those areas should or should not be produced for the hearing. It is my view that the hearing arbitrator will be in a better position to determine the weight, if any, to be given to the various areas of the Applicant's medical record in the context of all the evidence before them. I do not want to interfere with the trier of fact's role in assessing the probative value and assigning the appropriate weight to the various areas of the medical record.

Pursuant to my authority under Rule 67.8 of the Code, under the circumstances of this case, I order the Applicant to produce to Allstate her complete, unedited clinical notes and records prepared by Dr. Duvall from 1995 to the present. I believe the Applicant's counsel indicated that Dr. Duvall would cooperate in providing those records to the Applicant without the necessity of an order, if I ultimately were to decide that an unedited copy of the record should be produced. However, if required, I am prepared to make a third-party order under Rule 67.7 for Dr. Duvall to deliver to the Applicant a copy of the unedited record.

Rescheduling of the Arbitration Hearing

The Applicant's counsel expressed a concern, owing to conflicts with Mr. Kirby's counsel's schedule, that this matter has had to be put off for almost one year. The parties agreed to new dates that Mr. Kiddey assured would be suitable to Mr. Kirby's schedule. I therefore adjourned the hearing from July 23, 24, 25, 26, 30 and 31 and August 1 and 2, 2006 to April 2, 3, 4, 5, and April 30, May 1, 2 and 3, 2007.

EXPENSES

I received no submissions on expenses. I defer the matter of expenses of this motion to the hearing arbitrator, including any expenses that might be incurred by Dr. Duvall, to be decided in an overall consideration of arbitration expenses.

October 20, 2006

Beth Allen Arbitrator

Date

Financial Services Commission of Ontario