Neutral Citation: 2010 ONFSCDRS 41 FSCO A09-001802

BETWEEN:

KAREL PASKOE Applicant

and

MOTORS INSURANCE CORPORATION Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Judith Killoran Heard: Written submissions were received on February 1, 2010 and February 23, 2010 Appearances: James Michael Galan for Mr. Paskoe J. Claude Blouin for Motors Insurance Corporation

Issues:

The Applicant, Karel Paskoe, was involved in a motor vehicle accident on August 23, 2005. He applied for statutory accident benefits from Motors Insurance Corporation (“Motors”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Paskoe applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Is Mr. Paskoe required to produce OHIP records and the clinical notes and records of his family doctor dating back to prior motor vehicle accidents which possibly occurred in 2000, 2001 and 2002?

Result:

Mr. Paskoe is required to produce OHIP records and the clinical notes and records of his family doctor dating back to all prior motor vehicle accidents which may have occurred as early as 2000.

EVIDENCE AND ANALYSIS:

At the prehearing I conducted with the parties on January 27, 2010, Motors requested production of the clinical notes and records of Mr. Paskoe’s family doctor together with all OHIP records dating back to prior motor vehicle accidents alleged to have occurred in 2000, 2001 and 2002. Mr. Paskoe’s claim related to a motor vehicle accident on August 23, 2005. He agreed to produce the clinical notes and records of his family doctor and the OHIP records one year prior to the accident. I declined to make the order expanding the timelines for production as I was provided with little foundation for the request. However, I agreed to receive submissions from Motors in support of the order, which I received on February 1, 2010, with response submissions from Mr. Paskoe, which I received on February 23, 2010.

Insurer’s Submissions

Motors filed with me the following documents:

Physiotherapy Assessment of Parham Salek dated October 15, 2007;
Psychological Assessment and Treatment Plan Preparation of Knolly D. Hill dated October 30, 2007;
Insurer Examination – Physiotherapist’s Report of Roya Fereidooni dated March 31, 2008;
Insurer Examination – Physiatrist’s report of Dr. Rajka Soric dated July 25, 2008; and
Insurer Examination – Physiotherapy Report of Helen Sare dated January 6, 2009.

Motors submitted that all medical documentation in its possession commenced in 2007. The physiotherapy assessment report of October 15, 2007 notes that Mr. Paskoe was involved in a minor accident in 2000. In the Paramount Rehabilitation Centre Inc. Report of October 30, 2007, we find the following comment:

Mr. Paskoe reported that he had previous motor vehicle accidents in 2001 and 2002. He was injured but recovered.

In the Physiotherapy Insurer Examination Report of March 31, 2008, we find the following statements:

He stated that he was involved in two minor motor vehicle accidents in 2001 and 2002 but did not sustain any significant physical injuries.

Dr. Soric, physiatrist, notes in her report dated July 25, 2008, the following history:

He also stated that around two months ago he was involved in a minor rear end collision which, according to him, did not precipitate any injuries. He denied any prior illness or injuries of any type, although documentation in the file reveals a history of two prior motor vehicle accidents in 2001 and 2002.

In the physiotherapy report dated January 6, 2009, by Helen Sare, we find the following under Relevant Personal History:

He stated that he had a couple of minor motor vehicle accidents, probably in 2001 and 2002, with no injuries.

Motors alleges, based on the evidence above, that Mr. Paskoe has been inconsistent in reporting his prior health. Additionally, as the condition about which he complains is progressive, Motors submits that it would be unfair to restrict the production of pre-accident medical records to one year pre-accident in the face of evidence of prior injuries sustained in motor vehicle accidents occurring probably in 2001 and 2002, although there is reference to an accident occurring in 2000.

Mr. Paskoe’s Submissions

Mr. Paskoe agrees that there are inconsistencies in the medical reports regarding the nature and extent of the alleged injuries sustained by Mr. Paskoe in the other motor vehicle accidents. However, Mr. Paskoe challenges the notion that these inconsistencies are as a result of Mr. Paskoe’s reporting this information to the assessors in question.

Mr. Paskoe submits that the Insurer has not filed any supporting and reliable evidence to confirm that it was Mr. Paskoe who has been inconsistent in reporting his prior health as opposed to a misunderstanding that exists only between the assessors themselves.

Mr. Pakoe takes the position that, in the absence of supporting and reliable evidence, or an explanation by the Insurer about why this evidence could not have been obtained before filing these submissions, Mr. Paskoe should be given the benefit of the doubt. Mr. Paskoe advances this argument on the basis that he chose to proceed to arbitration expecting that it would be faster, less expensive and complex than proceeding to court on the same issues.

Mr. Paskoe submits that even if genuine ambiguity exists regarding whether or not Mr. Paskoe has been inconsistent in reporting his prior health to the assessors in question, Motors has accepted that Mr. Paskoe was employed at the time of the August 23, 2005 motor vehicle accident, continued to work after the accident and is not entitled to any income replacement benefits as a result of the accident. In other words, as Motors acknowledges that Mr. Paskoe is neither unemployed nor in receipt of disability benefits, there is no evidence that Mr. Paskoe’s condition is progressive which undermines any argument that expanded productions are relevant at this time.

Finally, Mr. Paskoe submits that as he has already agreed to provide the Insurer with its other production requests, he does not oppose revisiting this issue if there is information flowing from those productions that support the Insurer’s expanded production request.

CONCLUSION

The references in the medical reports to earlier accidents provide a foundation for Motors to amplify the scope of foundations. Although Mr. Paskoe is not seeking income replacement benefits, he has filed claims for medical benefits, reports and assessments. Motors requires further medical information to properly assess questions of causation and quantum. The dispute resolution system at FSCO encourages the early disclosure of relevant medical information for the purpose of narrowing the facts and issues in dispute. I find that it is reasonable and relevant for Mr. Paskoe to produce OHIP records and the clinical notes and records of his family doctor dating back to prior motor vehicle accidents as early as 2000.

April 1, 2010

Judith Killoran Arbitrator

Date

Financial Services Commission of Ontario