February 08, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Garcia and TD General -Reasonable and necessary treatment; forms not signed; testimony lacks credibility; benefits denied
Garcia and TD General
Decision Date: January 16, 2017
Heard Before: Adjudicator Jeffrey Musson
Mr. (Ocampo) Rodel Garcia was hurt in a car accident on August 30, 2013 and sought accident benefits from TD payable under the SABS. The parties were unable to resolve their disputes through mediation, and Mr. Garcia applied for arbitration at the FSCO.
- Is Mr. Garcia entitled to Medical Benefits in the amount of $2,169.10 for physiotherapy and massage therapy from North Toronto Rehab & Physiotherapy Centre, dated October 13, 2013?
- Is Mr. Garcia entitled to Medical Benefits in the amount of $2,883.20 for physiotherapy and massage therapy from North Toronto Rehab & Physiotherapy Centre, dated January 8, 2014?
- Is Mr. Garcia entitled to Medical Benefits in the amount of $2,547.80 for physiotherapy and massage therapy from North Toronto Rehab & Physiotherapy Centre, dated March 18, 2014?
- Is Mr. Garcia entitled to interest for the overdue payment of benefits?
- Mr. Garcia is not entitled to Medical Benefits in the amount of $2,169.10 for physiotherapy and massage therapy from North Toronto Rehab & Physiotherapy Centre, dated October 13, 2013; this claim is denied.
- Mr. Garcia is not entitled to Medical Benefits in the amount of $2,883.20 for physiotherapy and massage therapy from North Toronto Rehab & Physiotherapy Centre, dated January 8, 2014; this claim is denied.
- Mr. Garcia is not entitled to Medical Benefits in the amount of $2,547.80 for physiotherapy and massage therapy from North Toronto Rehab & Physiotherapy Centre, dated March 18, 2014; this claim is denied.
- Mr. Garcia is not entitled to interest for the overdue payment of benefits; this claim is denied.
- TD is entitled to its expenses in respect of the Arbitration Hearing. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
Prior to the start of the Hearing, two Motions were put forward by TD, and a Motion was put forward by Mr. Garcia at the beginning of Day 2.
The first Motion put forward by TD was to exclude the clinical notes and records of Dr. K from North Toronto Rehab & Physiotherapy Centre. Dr. K has had disciplinary issues with the College of Physicians and Surgeons. Thus, TD was of the opinion that Dr. K’s clinical notes and records of Mr. Garcia should not be admissible at the Hearing. After listening to oral submissions from both parties on this Motion, the Arbitrator ruled that Dr. K’s disciplinary issues are outside of this commission’s jurisdiction and were of little to no relevance. Therefore, Dr. K’s clinical notes were entered into evidence at this Hearing.
The second Motion put forward by TD was in regards to allowing sign-in sheets of North Toronto Rehab & Physiotherapy Centre to be allowed into evidence. These sign-in sheets were only served on TD on August 26, 2016, which was less than 30 days prior to the Hearing and their late service was in contradiction of Rule 32 of the SABS. In the Arbitrator’s opinion, these sign-in sheets had little value and required virtually no rebuttal from opposing counsel. As a result, these factors did not put opposing counsel at a disadvantage. Therefore, the sign-in sheets were entered into evidence.
Mr. Garcia was 57 years old when the car he was in was rear-ended. He was wearing his seatbelt. The police attended, but they instructed Mr. Garcia to go to the Collision Reporting Centre to file his report. The total damage to the vehicle was $800.00. Mr. Garcia never went to the hospital after the accident. He did visit his family doctor, Dr. U, but only twice subsequent to the accident. Both visits were within 12 days of the accident. He was diagnosed with whiplash, a minor injury under the SABs. Mr. Garcia testified that in the months following the accident, he suffered from chest pains, headaches and dizziness, but on December 11, 2013, Mr. Garcia’s clinical notes did not note chest pain, headaches or dizziness.
Mr. Garcia was the only person to testify on his behalf at the Hearing. When asked about his prior medical history, Mr. Garcia testified that he was diagnosed with diabetes prior to the accident and was under the care of Dr. R. He did not talk about his accident with Dr. R because Mr. Garcia felt that it was not relevant to his diabetes treatment. There were no medical experts called as witnesses by Mr. Garcia. He chose to rely on untested medical reports and his clinical notes and records.
On September 9, 2013, Mr. Garcia began attending physiotherapy at North Toronto Rehab & Physiotherapy Centre and continued for 10 months. Mr. Garcia’s OCF-1 was submitted on September 24, 2013, signed by his family doctor. The OCF-3listed pain in his neck, ribs, shoulders, and dizziness and headaches as a result of the August 30, 2013 accident. An OCF-18, dated October 2, 2013, was submitted on behalf of Mr. Garcia by North Toronto Rehab & Physiotherapy Centre in the amount of $3,465.30 for physical rehabilitation.
The Arbitrator found Mr. Garcia’s testimony to be at odds with the medical evidence submitted at this Hearing, and his testimony to be contradictory and lacking credibility. The Arbitrator put more weight on the documentary evidence submitted.
It was confirmed through the evidence at the Hearing that none of the OCF-18s that Mr. Garcia submitted for treatment were signed. If an Applicant fails to sign their OCF-18 then the Insurer is not liable to pay for medical or rehabilitation expenses, and will continue not to be liable until Mr. Garcia satisfies the requirements of Section 38(3) of the SABS.
TD sent Mr. Garcia denial letters related to his submitted OCF-18s on January 21, 2014, March 6, 2014, March 12, 2014, May 9, 2014, and a final denial letter on July 2, 2014. None of the OCF-18s that Mr. Garcia submitted are required to be paid by TD because of his failure to sign each treatment plan as required in Section 38(3). Therefore, the OCF-18 Medical Benefits in dispute are dismissed.
In the alternative, respecting whether the Medical Benefits were reasonable and necessary, Mr. Garcia also fails on this count. TD has paid the MIG limit of $3,500.00 on this file. Mr. Garcia must satisfactorily establish that his injuries cannot be treated within the MIG. Upon review of the medical evidence provided by Mr. Garcia, and the results of the IE, the Arbitrator determined Mr. Garcia failed to prove on the balance of probabilities that the benefits were reasonable and necessary.
TD paid up to the MIG limit on Mr. Garcia’s file. TD provided evidence showed from a medical perspective that Mr. Garcia’s injuries are considered to be within the MIG. Therefore, Mr. Garcia is denied all Medical Benefits in dispute.