Licence Appeal Tribunal File Number: 22-006001/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:
Hamid Shahnaghi
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Michael Henry, Counsel
For the Respondent:
Annette Uetrecht-Bain, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Hamid Shahnaghi, the applicant, was involved in an automobile accident on March 13, 2017. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $146.89 for a TENS machine, submitted in an Expense Claims Form (“OCF-6”), dated January 12, 2021?
ii. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
4The Case Conference Report and Order (“CCRO”), dated March 11, 2023, lists the first issue in dispute as: “Is the applicant entitled to $230.98 ($501.98 less approved $271.00) for chiropractic services (TENS machine), proposed by Dr. Ramin Safakish, in a treatment plan, dated March 1, 2021?” The respondent submits that the TENS machine expense was submitted on an OCF-6, not an OCF-18 and was date stamped January 12, 2021. A copy of the OCF-6 was provided by the respondent. Therefore, I have amended issue i above to reflect that the TENS machine was submitted on an OCF-6, dated January 12, 2021.
5The applicant submits that the CCRO also incorrectly states the amount in dispute. The applicant also withdrew the disputed amount of $29.19 for chiropractic services. Therefore, I have amended issue i to reflect that the amount in dispute is $146.89 for a TENS machine and omitted the $29.19 claim for chiropractic services.
RESULT
6I find that the applicant is not entitled to the OCF-6 for the TENS machine for his foot and leg. As there are no overdue benefits, there is no interest payable.
ANALYSIS
The applicant is not entitled to the TENS machine for his foot and leg
7I find that the applicant has not proven on a balance of probabilities that he is entitled to the OCF-6 for a TENS machine for his foot and leg.
8To receive payment for medical and rehabilitation benefits under s. 15 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.
9On the OCF-6, the applicant claimed entitlement to a TENS machine for his back and a second TENS machine for his foot and leg. Attached to the OCF-6 was a note from Dr. Ramin Safakish, anesthesiologist pain specialist, dated September 6, 2018, which supported the applicant’s use of a TENS machine to control his back pain.
10The respondent approved the TENS machine for the applicant’s back and denied the TENS machine for the foot and leg in the amount of $146.89 in its correspondence dated March 31, 2021. The reason for the denial of the TENS machine for the foot and leg was that the applicant had been diagnosed with chronic back pain. Dr. Safakish only recommended one TENS machine for the applicant’s back and there was no medical evidence to support the second TENS machine for the foot and leg.
11The applicant submits that the TENS machine for the foot and leg is both reasonable and necessary based on the medical evidence which indicates that he suffers pain in his knee, leg and foot as a result of the accident. He claims that the TENS machine is reasonable as it serves to reduce the shooting pain in his leg and his ongoing chronic pain.
12I find that the applicant is not entitled to the TENS machine for his foot and leg, for the following reasons.
13I agree with the respondent that the medical documentation provided does not recommend a second TENS machine for the applicant’s foot and leg.
14I find that there are no particulars on the OCF-6 submitted by the applicant about the list of items being requested. The only information provided is the item being claimed, the date of the claim and the price of the item. I find that there is no explanation as to why the applicant needed a TENS machine for his foot and leg. There is no mention about the goals or the efficacy of the treatment or any specifics at all. The only document attached to the OCF-6, is the letter from Dr. Safakish which speaks exclusively to the benefits of the TENS machine for the applicant’s back.
15While the applicant states in his submissions that the goal is to reduce his pain, I find that the applicant has not pointed to medical evidence to support that using the TENS machine on his foot and leg would reduce his accident-related pain.
16Further, while the applicant relies upon the report of Dr. Ramin Safakish dated November 28, 2018, which notes that the applicant was seen in respect to his response to intravenous infusion as well as his shoulder pain, Dr. Safakish does not recommend a TENS machine for the applicant’s foot and leg. He recommended a TENS machine to help with his lower back.
17The applicant further relies upon the report of Dr. Hamid Nourhosseini, Orthopedic Surgeon, dated June 8, 2022, which notes that Dr. Nourhosseini saw the applicant with respect to his bilateral knee pain. Dr. Nourhosseini suggested to the applicant that he consider intra-articular injections and possible surgery. There were no recommendations for TENS therapy.
18Accordingly, given the lack of supporting medical evidence, I find that the applicant has not met his onus of proving that the TENS machine in dispute is reasonable and necessary.
19For the reasons set out above, I find on a balance of probabilities that the applicant is not entitled to the OCF-6 for a TENS machine for his foot and leg.
Entitlement to Interest
20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that the applicant is not entitled to the disputed medical benefit, no payments are overdue, and therefore no interest is payable.
ORDER
21I find that the applicant is not entitled to the OCF-6 for the TENS machine for his foot and leg. As there are no overdue benefits, there is no interest payable. The application is dismissed.
Released: November 25, 2024
Melanie Malach
Adjudicator