Financial Services Commission of Ontario

Neutral Citation: 2015 ONFSCDRS 130 FSCO A14-006411

BETWEEN:

BYRON CLARKSON Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

PRE-HEARING DECISION

Before: Susan Sapin Heard: By telephone conference call on May 12, 2015. Written submissions were received on May 8, 15, and June 5, 2015.

Appearances: Caitlyn MacDonell for Mr. Clarkson Caroline Meyer for Economical Mutual Insurance Company

Issues:

The Applicant, Byron Clarkson, was injured in a motor vehicle accident on February 28, 1996, when he was four years old. He applied for and received statutory accident benefits from Economical Mutual Insurance Company (“Economical”), payable under the Schedule.¹ Economical disputes his entitlement to certain benefits. The parties were unable to resolve their disputes through mediation, and Mr. Clarkson applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Economical brought a motion to stay the arbitration hearing scheduled for November 30, December 1, 2, & 3 and December 7, 8, 9 & 10, 2015 in Toronto until the Applicant produces all of the records it has requested, on the basis that a number of productions relevant to the issues in dispute in the arbitration proceeding remain outstanding.

Economical also requested Orders to be made against third parties for production of records, and seeks its costs of this motion.

Result:

1. The request for a stay is denied at this time and the arbitration will proceed on November 30, 2015. If the documents ordered to be produced have not been produced 90 days before the start of the hearing, either party may request, in writing, an adjournment of the arbitration hearing, and Economical may renew it request for a stay.

2. Economical withdrew its request for Items (a) (c) (e) and (j). I find that Advanced Automotive (item “m”) has provided sufficient information. The remaining documents requested by Economical and identified as items (a) to (s) in its Notice of Motion are ordered to be produced.

Background:

The Applicant moved to Chicago in 1999 and continues to live there. On December 12, 2012, he submitted the following claims for statutory accident benefits to Economical, which were refused on November 6, 2013:

• A weekly education disability benefit/LECB: $135,262.00
• Attendant care benefits: 539,847.73
• Housekeeping benefits: 29,503.22
• Medical/Rehabilitation benefits: 83,259.80
• Independent Living Assessment: 75,142.50
• Positive Approach assessment: 4,550.00
• Interest on any benefits owing of 2% per month;
• Expenses of the arbitration proceeding, and a Special Award.

This claim is significant and includes a claim that the Applicant suffered a catastrophic impairment in the accident. Causation is disputed. The basis for Economical’s motion is set out in the Affidavit of Helen D.K. Friedman, counsel for Economical, sworn April 24, 2015.

Economical maintains it has limited information about the Applicant’s medical history, schooling, or activities of daily life, and no medical information from the Applicant other than medical-legal assessments related to the tort claim, from 1999 to 2011.

Particularly, no records from any treating family doctor after January 21, 1997 and only minimal records from other treating health practitioners have been provided. Furthermore, Economical maintains the Applicant made no request for benefits, treatment or consideration from approximately December 1996 to March 2011, a delay of approximately 14 years.²

Economical further maintains the Applicant did not make sufficient effort to obtain the records it has been requesting, which it undertook to do within 60 days, as set out in the pre-hearing of October 23, 2014.

At the pre-hearing which took place on October 23, 2014, the parties agreed the arbitration hearing would begin on November 30, 2015. Economical’s Response to an Application for Arbitration indicates it conducted insurer’s assessments (IE’s) in July 2013. Economical maintains it would be seriously prejudiced if forced to proceed with an arbitration, when there are significant and lengthy gaps in the medical information produced to date.

In addition, as the necessary information is in the possession of third parties in the United States, Economical does not have access to the equivalent of an OHIP summary, no access to any discovery procedure, and must rely on the Applicant to fully disclose all of his treating practitioners, the requirement of full and early disclosure being a key component of the alternate dispute resolution system set up under the Insurance Act.

Although the Applicant has already provided a great deal of information, (Applicant’s letters to counsel for Economical dated May 15 and 29, 2015) I find the remaining documents requested by Economical and identified as items (a) to (s) in its Notice of Motion are relevant and reasonably necessary to address the gaps in information and for a full and fair hearing of the issues in dispute, and must be produced.

For records that certain Third Parties have agreed to produce upon receipt of a signed consent or authorization from the Applicant, the Applicant shall provide the signed authorizations and request the documents required forthwith.

Items (a), (c), (e) (m) and (j) have either been fulfilled or are moot. For the remaining items, I have made Orders against the following third parties to produce the documents in their possession or control:

(b) Dr. Robert Gates (d) Dr. Jeffrey Spector (f) Dr. Peggy Burmeister (g) Dr. Erin Cowell (h) Mr. Lou Mangillo (i) Ms. Kimberley Miller (k) Dr. David Martin (l) Oakton Community College (n) Carons Clothing Outlet (o) The Josselyn Centre

I also order that the applicant provide forthwith:

• addresses and contact information for the practitioners and entities identified herein,
• a list of all places of employment to the present date, together with requests for employment files, and with copies of requests for their files,
• a list of all his treating physicians and health care practitioners, including counselling services from 1997 forward, together with their contact information, and copies of requests for their files.

If the productions ordered have not been produced at least 90 days before the arbitration hearing scheduled to commence on November 30, 2015, Economical may renew its request for a stay of the proceedings or request an adjournment of the arbitration hearing in writing.

EXPENSES:

The issue of costs associated with this motion is deferred to the hearing arbitrator.

June 18, 2015

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

FSCO A14-006411

BETWEEN:

BYRON CLARKSON Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

THIRD PARTY ARBITRATION ORDER

Proceedings before Director or arbitrator

22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. R.S.O. 1990, c. I.8, s. 22 (1); 1997, c. 28, s. 78; 2006, c. 19, Sched. C, s. 1 (1).

By my authority under sections 22 and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Dr. Robert Gates shall produce to Economical Mutual Insurance Company his complete file for the Applicant Byron Clarkson, from the commencement of treatment/assessment to date including all clinical notes and records, correspondence, consultation reports, diagnostic testing and testing results, within 30 days of receipt of this Order.

2. Economical Mutual Insurance Company shall pay the reasonable costs of producing these records.

June 18, 2015

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

FSCO A14-006411

BETWEEN:

BYRON CLARKSON Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

THIRD PARTY ARBITRATION ORDER

Proceedings before Director or arbitrator

22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. R.S.O. 1990, c. I.8, s. 22 (1); 1997, c. 28, s. 78; 2006, c. 19, Sched. C, s. 1 (1).

By my authority under sections 22 and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Dr. Jeffrey Spector shall produce to Economical Mutual Insurance Company his complete file for the Applicant Byron Clarkson, from the commencement of treatment/assessment to date including all clinical notes and records, correspondence, consultation reports, diagnostic testing and testing results, within 30 days of receipt of this Order.

2. Economical Mutual Insurance Company shall pay the reasonable costs of producing these records.

June 18, 2015

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

FSCO A14-006411

BETWEEN:

BYRON CLARKSON Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

THIRD PARTY ARBITRATION ORDER

Proceedings before Director or arbitrator

22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. R.S.O. 1990, c. I.8, s. 22 (1); 1997, c. 28, s. 78; 2006, c. 19, Sched. C, s. 1 (1).

By my authority under sections 22 and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Dr. Peggy Burmeister shall produce to Economical Mutual Insurance Company her complete file for the Applicant Byron Clarkson, from the commencement of treatment/assessment to date including all clinical notes and records, correspondence, consultation reports, diagnostic testing and testing results, within 30 days of receipt of this Order.

2. Economical Mutual Insurance Company shall pay the reasonable costs of producing these records.

June 18, 2015

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

FSCO A14-006411

BETWEEN:

BYRON CLARKSON Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

THIRD PARTY ARBITRATION ORDER

Proceedings before Director or arbitrator

22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. R.S.O. 1990, c. I.8, s. 22 (1); 1997, c. 28, s. 78; 2006, c. 19, Sched. C, s. 1 (1).

By my authority under sections 22 and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Dr. Erin Cowell shall produce to Economical Mutual Insurance Company her complete file for the Applicant Byron Clarkson, from the commencement of treatment/assessment to date including all clinical notes and records, correspondence, consultation reports, diagnostic testing and testing results, within 30 days of receipt of this Order.

2. Economical Mutual Insurance Company shall pay the reasonable costs of producing these records.

June 18, 2015

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

FSCO A14-006411

BETWEEN:

BYRON CLARKSON Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

THIRD PARTY ARBITRATION ORDER

Proceedings before Director or arbitrator

22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. R.S.O. 1990, c. I.8, s. 22 (1); 1997, c. 28, s. 78; 2006, c. 19, Sched. C, s. 1 (1).

By my authority under sections 22 and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Lou Mangillo shall produce to Economical Mutual Insurance Company his complete file for the Applicant Byron Clarkson, from the commencement of treatment/assessment to date including all clinical notes and records, correspondence, consultation reports, diagnostic testing and testing results, within 30 days of receipt of this Order.

2. Economical Mutual Insurance Company shall pay the reasonable costs of producing these records.

June 18, 2015

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

FSCO A14-006411

BETWEEN:

BYRON CLARKSON Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

THIRD PARTY ARBITRATION ORDER

Proceedings before Director or arbitrator

22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. R.S.O. 1990, c. I.8, s. 22 (1); 1997, c. 28, s. 78; 2006, c. 19, Sched. C, s. 1 (1).

By my authority under sections 22 and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Ms. Kimberley Miller shall produce to Economical Mutual Insurance Company her complete file for the Applicant Byron Clarkson, from the commencement of treatment/assessment to date including all clinical notes and records, correspondence, consultation reports, diagnostic testing and testing results, within 30 days of receipt of this Order.

2. Economical Mutual Insurance Company shall pay the reasonable costs of producing these records.

June 18, 2015

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

FSCO A14-006411

BETWEEN:

BYRON CLARKSON Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

THIRD PARTY ARBITRATION ORDER

Proceedings before Director or arbitrator

22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. R.S.O. 1990, c. I.8, s. 22 (1); 1997, c. 28, s. 78; 2006, c. 19, Sched. C, s. 1 (1).

By my authority under sections 22 and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Dr. David Martin shall produce to Economical Mutual Insurance Company his complete file for the Applicant Byron Clarkson, from the commencement of treatment/assessment to date including all clinical notes and records, correspondence, consultation reports, diagnostic testing and testing results, within 30 days of receipt of this Order.

2. Economical Mutual Insurance Company shall pay the reasonable costs of producing these records.

June 18, 2015

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

FSCO A14-006411

BETWEEN:

BYRON CLARKSON Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

THIRD PARTY ARBITRATION ORDER

Proceedings before Director or arbitrator

22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. R.S.O. 1990, c. I.8, s. 22 (1); 1997, c. 28, s. 78; 2006, c. 19, Sched. C, s. 1 (1).

By my authority under sections 22 and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Oakton Community College shall produce to Economical Mutual Insurance Company its complete file for the Applicant Byron Clarkson, from the commencement of treatment/ assessment to date including all clinical notes and records, correspondence, consultation reports, diagnostic testing and testing results, within 30 days of receipt of this Order.

2. Economical Mutual Insurance Company shall pay the reasonable costs of producing these records.

June 18, 2015

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

FSCO A14-006411

BETWEEN:

BYRON CLARKSON Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

THIRD PARTY ARBITRATION ORDER

Proceedings before Director or arbitrator

22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. R.S.O. 1990, c. I.8, s. 22 (1); 1997, c. 28, s. 78; 2006, c. 19, Sched. C, s. 1 (1).

By my authority under sections 22 and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Josselyn Centre shall produce to Economical Mutual Insurance Company its complete file for the Applicant Byron Clarkson, from the commencement of treatment/assessment to date including all clinical notes and records, correspondence, consultation reports, diagnostic testing and testing results, within 30 days of receipt of this Order.

2. Economical Mutual Insurance Company shall pay the reasonable costs of producing these records.

June 18, 2015

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

FSCO A14-006411

BETWEEN:

BYRON CLARKSON Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

THIRD PARTY ARBITRATION ORDER

Proceedings before Director or arbitrator

22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. R.S.O. 1990, c. I.8, s. 22 (1); 1997, c. 28, s. 78; 2006, c. 19, Sched. C, s. 1 (1).

By my authority under sections 22 and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Applicant, Mr. Byron Clarkson, shall produce to Economical Mutual Insurance Company addresses and contact information for the practitioners and entities identified in my decision and orders to allow the orders to be properly effected.

June 18, 2015

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

FSCO A14-006411

BETWEEN:

BYRON CLARKSON Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

THIRD PARTY ARBITRATION ORDER

Proceedings before Director or arbitrator

22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. R.S.O. 1990, c. I.8, s. 22 (1); 1997, c. 28, s. 78; 2006, c. 19, Sched. C, s. 1 (1).

By my authority under sections 22 and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Applicant, Mr. Byron Clarkson, shall produce to Economical Mutual Insurance Company a list of all places of employment to the present date, together with requests for employment files, together with copies of requests for their files.

June 18, 2015

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

FSCO A14-006411

BETWEEN:

BYRON CLARKSON Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

THIRD PARTY ARBITRATION ORDER

Proceedings before Director or arbitrator

22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. R.S.O. 1990, c. I.8, s. 22 (1); 1997, c. 28, s. 78; 2006, c. 19, Sched. C, s. 1 (1).

By my authority under sections 22 and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Applicant, Mr. Byron Clarkson, shall provide a list of all of his treating physicians and health care practitioners, including counselling services from 1997 forward, together with their contact information, together with copies of requests for their files, to Economical Mutual Insurance Company.

June 18, 2015

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

Neutral Citation: 2015 ONFSCDRS 130 FSCO A14-006411

BETWEEN:

BYRON CLARKSON Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY Insurer

THIRD PARTY ARBITRATION ORDER

Proceedings before Director or arbitrator

22(1) For the purpose of exercising the powers and performing their duties under this Act, the Director and every arbitrator has the same power to summon and enforce the attendance of witnesses and compel them to give evidence on oath or otherwise, and to produce documents, records and things, as is vested in the Superior Court of Justice for the trial of civil actions. R.S.O. 1990, c. I.8, s. 22 (1); 1997, c. 28, s. 78; 2006, c. 19, Sched. C, s. 1 (1).

By my authority under sections 22 and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Carons Clothing Outlet shall produce to Economical Mutual Insurance Company its complete employment file for the Applicant Byron Clarkson, from the commencement of employment to date, within 30 days of receipt of this Order.

2. Economical Mutual Insurance Company shall pay the reasonable costs of producing these records.

June 18, 2015

Susan Sapin Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended.
2. 2Affidavit of Ms. Friedman, Paragraph 9.