Neutral Citation: 2017 ONFSCDRS 11 FSCO A15-001831

BETWEEN:

(OCAMPO) RODEL GARCIA Applicant

and

TD GENERAL INSURANCE COMPANY Insurer

REASONS FOR DECISION

Before: Arbitrator Jeff Musson

Heard: In person at ADR Chambers on September 1 & 2, 2016 and by written submissions completed on November 2, 2016

Appearances: Mr. Mick Hassell for Mr. (Ocampo) Rodel Garcia Ms. Danielle Koehn and Mr. Fergal Murphy for TD General Insurance Company

Issues:

The Applicant, Mr. (Ocampo) Rodel Garcia, was injured in an accident on August 30, 2013 and sought accident benefits from TD General Insurance Company ("TD"), payable under the SABS.¹ The parties were unable to resolve their disputes through mediation, and Mr. Garcia, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

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?
Is either party liable to pay expenses in respect of the Arbitration Hearing?

Result:

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.

EVIDENCE AND ANALYSIS:

Prior to the start of the Hearing, two Motions were put forward by the Insurer, and a Motion was put forward by the Applicant at the beginning of Day 2.

MOTION #1

The first Motion put forward by the Insurer was to exclude the clinical notes and records of Dr. Kai from North Toronto Rehab & Physiotherapy Centre. Dr. Kai has had disciplinary issues with the College of Physicians and Surgeons. As a result, the Insurer was of the opinion that Dr. Kai's clinical notes and records of the Applicant should not be admissible at the Hearing. After listening to oral submissions from both parties on this Motion, I ruled that Dr. Kai's disciplinary issues are outside of this commission's jurisdiction and were of little to no relevance. Therefore, I allowed Dr. Kai's clinical notes and records to be entered into evidence at this Hearing.

MOTION #2

The second Motion put forward by the Insurer 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 the Insurer 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 my 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, I allowed the sign-in sheets to be entered into evidence.

MOTION #3

On Day 2 of the Hearing, the Applicant requested that a treatment plan in the amount of $499.00 be withdrawn from the Hearing. The Insurer did not object. Therefore, the treatment plan was withdrawn as an issue in dispute, thereby leaving only the three remaining treatment plans in dispute.

BACKGROUND

The Applicant was 57 years old at the time of the accident on August 30, 2013. At the time, the Applicant was heading west on Finch Avenue, when the car he was in was rear-ended. He was a passenger in the vehicle and wearing his seatbelt. The police attended, but they instructed the Applicant to go to the Collision Reporting Centre to file his report. The total damage to the vehicle was $800.00.² The Applicant never went to the hospital after the accident. He did visit his family doctor, Dr. Umoquit, but only twice subsequent to the accident. Both visits were within 12 days of the accident.³

THE APPLICANT

The Applicant was the only person to testify on his behalf at the Hearing. When asked about his prior medical history, the Applicant testified that he was diagnosed with diabetes prior to the accident and was under the care of Dr. Rosen. He confirmed that he did not talk about his accident with Dr. Rosen because the Applicant felt that it was not relevant to his diabetes treatment.

There were no medical experts called as witnesses by the Applicant. Instead, he chose to rely on untested medical reports and his clinical notes and records. The Applicant was diagnosed with whiplash by his family doctor following the accident.⁴ Whiplash is considered a minor injury under the SABS. The Applicant testified that after the accident, his head was stiff and his shoulders were aching, as was written in his doctor's clinical notes and records.⁵ The Applicant testified that in the months following the accident, he suffered from chest pains, headaches and dizziness, but on December 11, 2013, the Applicant's clinical notes did not note chest pain, headaches or dizziness.

On September 9, 2013, the Applicant began attending physiotherapy at North Toronto Rehab & Physiotherapy Centre and continued for 10 months until June 27, 2014.⁶ The Applicant testified that he was receiving massage and machine-based therapy from Dr. Kennedy. Dr. Kennedy worked under Dr. Kai's supervision.

The Applicant's OCF-1 was submitted on September 24, 2013, signed by his family doctor.⁷ On his OCF-3, the Applicant stated that he had pain in his neck, ribs, shoulders, and dizziness and headaches as a result of the August 30, 2013 accident.⁸ An OCF-18, dated October 2, 2013, was submitted on behalf of the Applicant by North Toronto Rehab & Physiotherapy Centre in the amount of $3,465.30 for physical rehabilitation.⁹

I found the Applicant's testimony to be at odds with the medical evidence submitted at this Hearing. As a result, I found the Applicant's testimony to be contradictory and lacking credibility. I therefore have put more weight on the documentary evidence submitted.

Non-Compliance

It was confirmed through the evidence at the Hearing that none of the OCF-18s that the Applicant submitted for treatment were signed. If an Applicant fails to sign their OCF-18 treatment and assessment plan, an Insurer is not liable to pay for medical or rehabilitation expenses, and will continue not to be liable until the Applicant satisfies the requirements of Section 38(3) of the SABS.

The Insurer sent the Applicant 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 the Applicant submitted are required to be paid by the Insurer 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.

"Reasonable and Necessary"

In the alternative, respecting whether the Medical Benefits were reasonable and necessary, the Applicant also fails on this count. The Insurer has paid the Minor Injury Guideline ("MIG") limit of $3,500.00 on this file. The Applicant must satisfactorily establish that his injuries cannot be treated within the MIG.

In his clinical notes and records, the Applicant was noted as saying that he had no pain at all on March 18, 2014, and a further comment on June 14, 2014 noted that he felt great. The notes also state that he was improving with treatment.¹⁰ In fact, the last time there were documented notes that the Applicant complained of pain was 12 days after the accident. The Applicant testified that the last time he saw his family doctor about accident-related issues was September 11, 2013. The Applicant testified that the reason he said he was feeling good in the records was that he was only feeling "good" that day. The other days, he was not feeling well.

On October 16, 2013, he told North Toronto Rehab & Physiotherapy Centre that he was improving by 40%. By February 13, 2014, his clinical notes and records noted the Applicant stated he was continually getting even better. The Applicant confirmed in his testimony that he stopped going to physiotherapy on June 27, 2014. He could not afford treatment, but he testified that he still had neck and shoulder pain after he stopped going for treatment.

In the spring of 2015, the Applicant was assigned a new family doctor, Dr. Pashaei, because Dr. Umoquit (his family doctor since 1997) retired. The Applicant testified that he is seeing his doctor for maintenance of hypertension and diabetes; however, in the records since 2015, there is no mention by the new family doctor about the 2013 motor vehicle accident.¹¹

The Applicant is putting forward the position that he still has pain. However, the Applicant confirmed in his testimony that no doctor had diagnosed him with chronic pain syndrome. There is a significant disconnect because the Applicant's testimony is not supported by any clinical notes or records or any report by a medical practitioner. The Applicant has never been diagnosed with chronic pain by anyone throughout his rehabilitation.

Even if the Applicant was successful in explaining why his submitted OCF-18s were not signed, and was additionally successful in proving his injuries fall outside of the MIG, in my opinion, the Applicant would still not be entitled to the benefits in dispute because he failed to prove that the treatment plans were reasonable and necessary based on evidence submitted at the Hearing.

The Insurer's Assessment by Dr. Pravesh Jugnundan

Dr. Jugnundan was hired by the Insurer to complete an assessment of the Applicant. He was tendered as an expert witness by the Insurer. Dr. Jugnundan confirmed that he works for both Applicant and Insurer counsel in accident benefit cases. He performs assessments approximately one day per week. His job duty during these assessments is to only assess, not to provide treatment advice.

In addition to Dr. Jugnundan, the Applicant was also assessed by Dr. Cowman, psychologist, as part of a multidisciplinary report on March 7, 2014. There were three reports completed on behalf of the Insurer. The first report was completed on March 7, 2014,¹² and another report was completed only by Dr. Jugnundan on May 2, 2014.¹³ In the assessment report of March 7, 2014, the Applicant stated that he suffered from headaches three times per week. He only took Aleve for the pain. No prescriptions were ever written for the Applicant prescribing any pain medication. Both doctors concluded that the Applicant's injuries from the motor vehicle accident fell within the MIG.¹⁴ Dr. Cowman and Dr. Jugnundan came to the conclusion that the Applicant suffered soft tissue injuries as a result of the accident on August 30, 2013 and his prior medical issues didn't prevent him from recovering. A letter was sent to the Applicant on May 5, 2014 outlining the conclusions of the report.¹⁵

The May 2, 2014 report was only completed by Dr. Jugnundan.¹⁶ The doctor found that the Applicant showed signs of improvement from the initial injuries that he complained of at the time of the accident. There was no neck pain documented in his assessment. Dr. Jugnundan's opinion stated that the Applicant was getting better, and definitely not getting worse as time progressed.

Dr. Jugnundan testified as to his methodology used when completing an assessment. He confirmed that the Applicant provides him with their past history and the Applicant's doctor's notes. Dr. Jugnundan said that the Applicant met the definition of a person sustaining injuries within the MIG as noted in the SABS. The Applicant's injuries were soft tissue in nature. He testified that it was weird to have a negative entry from the Applicant's doctor's notes that there were "No chest pains, or headaches and no accident related injuries". Dr. Jugnundan stated that typical clinical notes and records do not record any details if nothing is present.

The Applicant had testified earlier that he wasn't examined by Dr. Jugnundan. Dr. Jugnundan asserted in his testimony, though, that he in fact does an exam as part of every assessment he completes.

I found Dr. Jugnundan credible. Most importantly, Dr. Jugnundan's testimony lined up with the facts and entries contained in the Applicant's clinical notes and records. Ultimately, he was asked to comment, based on his expert opinion, if the Applicant suffered from chronic pain. He said, in his opinion, that the Applicant did not suffer from chronic pain.

CONCLUSION

Cases such as Ali and Ferozuddin and Certas Direct Insurance Company¹⁷ and El-Saikali and Co-Operators General Insurance Company¹⁸ confirm that the onus rests with the Applicant to prove his/her case.

The Insurer paid up to the MIG limit on the Applicant's file. The onus of proof is on the Applicant to show, on a balance of probabilities, that the benefits he is claiming entitlement to are reasonable and necessary. Further, the Applicant must prove his injuries are not treatable within the MIG. The Applicant has failed on both counts.

The Applicant failed to show that the treatment plans in dispute were reasonable and necessary. There was medical evidence and testimony at the Hearing which showed that the Applicant had achieved maximum medical improvement from his injuries caused by the accident on August 30, 2013. The Applicant did not provide medical evidence or medical experts that would show that his injuries could not be treated within the MIG.

The Insurer provided evidence, including the testimony of Dr. Jugnundan, that showed from a medical perspective that the Applicant's injuries are considered to be within the MIG. Therefore, the Applicant is denied all Medical Benefits in dispute.

Interest for the Overdue Payment of Benefits

Since I have determined that no benefits are payable to the Applicant, no interest is payable.

EXPENSES:

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.

January 16, 2017

Jeff Musson Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

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.