Licence Appeal Tribunal File Number: 21-003606/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Stefano Giacoboni
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Frank A Calcagni, Counsel
For the Respondent:
Kathleen Mertes, Counsel
HEARD:
BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Stefano Giacoboni, the applicant, was involved in an automobile accident on August 3, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $1,335.00 ($2,700.00 less $1,365.00 approved), for a TENS unit, proposed by Absolute Rehabilitation & Wellness, in a treatment plan dated October 10, 2019?
ii. Is the applicant entitled to $2,100.00 for physiotherapy services, proposed by Absolute Rehabilitation & Wellness in a treatment plan dated March 12, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is not entitled to the treatment plans in dispute, or interest.
PROCEDURAL ISSUES
4The respondent submits that in the applicant’s written submissions, which were served on February 7, 2023, there were new productions included as part of the applicant’s evidence that were not previously served on the respondent. It argues that the Case Conference Report and Order (“CCRO”) required any evidence to by served no later than 60 days prior to the hearing date of February 24, 2023. The evidence consists of an email from the applicant’s physiotherapist, which included attachments itemizing a Compex brand of TENS machine, and a retail price list.
5The respondent requests that I exclude this late evidence for the purposes of this written hearing, on the basis that this amounts to a “trial by ambush” and is not consistent with the objectives of the Tribunal to ensure a fair and efficient process. The respondent cites the Tribunal decision 18-001128 and Aviva Insurance Canada 2019 CanLII 58164 (ON LAT) (“Kumar”) in support of its claim. The applicant did not provide any reply submissions to address the issue of late production of evidence.
6I find that the applicant is entitled to rely on the evidence relating the TENS machine. The material relating to the TENS machine is relevant to the issues in dispute and the probative value outweighs its prejudicial effect to the respondent.
7Although the respondent submits that the CCRO stipulated that all evidence must be served no later than 60 days before the hearing, from my review of the CCRO, the 60 day production deadline was limited to items that were “responsive to items that have already been produced”. The respondent did not provide any submissions or evidence as to how the description of the TENS machine and the price list, are responsive. Rather, I find Rule 9.2 of the Tribunal’s Common Rules of Practice and Procedure to be applicable, which stipulates that parties must disclose all evidence to be presented as evidence at the hearing, at least 10 days before the hearing.
8Further, the respondent did not provide any submissions or evidence as to what prejudice it would suffer, if any, as a result of this late disclosure being admitted. The respondent was able to review the TENS materials and, in its submissions, provided its own listing of TENS machines and price lists from Amazon and Walmart. In my view, even if the respondent suffered prejudice, the evidence’s probative value outweighs it. Moreover, if the respondent required additional time to review the material, it could have filed a motion with the Tribunal under Rule 15 and requested an extension of time to file its responding submissions. It did not do so.
9With respect to the caselaw that the respondent cited, I note that while Tribunal decisions may be persuasive, they are not binding upon me. As such, the email from the applicant’s physiotherapist and attachments relating to the TENS machine will be considered as part of the applicant’s evidence for this written hearing.
ANALYSIS
10To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
The outstanding balance of the OCF-18 dated October 10, 2019 for a TENS unit is not reasonable and necessary
11The applicant submits that the proposed TENS unit is needed to treat his serious and ongoing accident-related physical impairments. He contends that he suffered from pre-accident back impairments, and had undergone an L5-S1 posterior decompression and microdiscectomy surgery on October 20, 2015. As a result of the accident, less than a year later, this pre-existing back issue was substantially aggravated and necessitated physical therapy, as well as two subsequent revision surgeries. The final surgery took place on March 22, 2019.
12The applicant had submitted an OCF-18 in the amount of $2,700.00, for a TENS unit with accessories in the amount of $1,600.00, and 5 sessions of therapeutic treatment for $1,000.00. The respondent partially approved the OCF-18 in the amount of $1,335.00, for the full cost of the therapeutic treatment and part of the cost of the TENS machine, plus accessories, in the amount of $265.00. The applicant disputes the outstanding balance of the TENS unit, being $1,335.00.
13The respondent submitted various price lists from Amazon and Walmart, indicating that the average retail purchase price for a TENS machine, with accessories is below the $265.00 amount that the respondent had approved. It further relies on the Financial Services Commission of Ontario Cost of Goods Guideline (Superintendent’s Guideline No. 02/16) in support of its position that the retail price of an item, is the lowest price, including delivery charges, duties and taxes, that would be payable to acquire the item.
14I find that the applicant has not established that the outstanding balance of the TENS machine is reasonable and necessary.
15I agree with the respondent that the applicant has not provided sufficient evidence as to why this specific TENS machine is reasonable and necessary. The price of the Compex model proposed by the applicant is substantially higher than all of the TENS machines available to purchase through the major retailers canvassed by the respondent. In his submissions, the applicant lists the features as described in the brochures of the Compex units, including that it has a wireless 4-channel muscle stimulator, with 30-40 possible programs. He also submits that these programs are designed to be incorporated into various treatment programs.
16However, while the applicant lists the brochure features of the unit in his submissions, no explanation is provided as to why these specific features are needed, to justify the substantial cost of the machine. Nor has the applicant provided any evidence or specific submissions as to how the unit in the cost range proposed by the respondent, would not be sufficient to treat the applicant’s physical impairments.
17Although the applicant provided an email from his physiotherapist, I do not find this evidence to be persuasive. The email contained only attachments to the standard brochure and price lists for two Compex TENS units. However, there is no explanation provided by the treatment provider as to why this machine is specifically needed for the applicant’s treatment. Further, I agree with the respondent that the OCF-18 itself did not include any explanatory information of the proposed TENS model. Given that the cost of the proposed TENS unit was substantially higher than all of the units available for purchase through major retailers, the onus is on the applicant to establish that the additional cost is reasonable and necessary. I find that he has not provided sufficient evidence in this regard.
The OCF-18 dated March 12, 2021 for physiotherapy services is not reasonable and necessary
18The applicant submitted an OCF-18 for 10 one-hour sessions of physiotherapy treatment, in the amount of $2,100.00. The OCF-18 proposes electro-acupuncture, and the applicant submits that this proposed treatment involves the use of neuromuscular electrotherapy. The OCF-18 states that electro-acupuncture can “help calm specific nervous tissue & activate them to recruit motor fibers efficiently”, which will ensure spinal protection. The applicant submits that this treatment is reasonable and necessary to meet the stated goals of pain reduction, increased range of motion, return to activities of normal living and return to pre-work accident activities.
19The respondent denied the OCF-18, relying on its s. 44 insurer’s examination (“IE”) of Dr. Hosseini, physiatrist. Dr. Hosseini diagnosed the applicant with a number of impairments, including post-traumatic headaches, shoulder complaints, cervical spine strain and strain, and lower lumbar sprain and strain and exacerbation of pre-existing condition. However, Dr. Hosseini found that the applicant has achieved maximum medical recovery from a rehabilitation perspective, but that his pharmacological treatment could be optimized and proposed medication and trigger point injections. He held that the proposed treatment plan was not reasonable and necessary, as there were no specific details provided as to the nature of the intervention. Rather, Dr. Hosseini recommended a home exercise program.
20I agree with the respondent that the applicant has not established that the proposed electro-acupuncture therapy is reasonable and necessary.
21The OCF-18 itself provides very little explanation of the proposed treatment and how it will meet the stated goals. The treatment is described as “therapeutic intervention NEC” and “neuro-musculo-vascular re-conditioning”. It further states that the treatment will calm specific nervous tissue and activate them to recruit motor fibers efficiently, will improve tissue perfusion and intra-cellular fluid dynamics around neuro-vascular bundles. However, I agree with the respondent that the description provided in this OCF-18 is almost identical to the comments contained in the OCF-18 dated October 10, 2019. No new information was provided by the physiotherapist as to the applicant’s progression with such treatment, or whether the previously approved treatment was effective.
22The applicant does not direct me to any evidence from the treating physiotherapy clinic, describing the applicant’s treatment progression, how the stated goals were being met, or why another course of treatment was needed a year and a half after the October 2019 treatment. Although this is a subsequent OCF-18 for similar treatment, no progress report summarizing the treatment progress was provided. The applicant further does not direct me to any evidence indicating that such electro-acupuncture treatment was recommended by his treating physician.
23As such, I find that the applicant has not met his onus to provide that the proposed treatment is reasonable and necessary.
ORDER
24The applicant has not discharged his onus in establishing that the disputed treatment plans are reasonable and necessary as a result of the accident. Therefore, no benefits are payable, and no interest is owing.
25The application is dismissed.
Released: September 11, 2023
Ulana Pahuta
Adjudicator