Kane v. Aviva Insurance Company, 2021 CanLII 55137

Citation: Kane v. Aviva Insurance Company, 2021 ONLAT 20-006995/AABS

Released Date: 06/25/2021

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:

Kevin Kane

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Anthony B. Zuber, Counsel

For the Respondent:

Vicky Chan, Counsel

HEARD:

Via written submissions

OVERVIEW

1This applicant sustained impairments in an accident that occurred on June 28, 2018 and sought accident benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Aviva accepted that psychological treatment was reasonable and necessary and partially approved the treatment plan in the amount of $1,804.05. It denied the balance of the plan, being $598.32, on the basis that the recommendation was made by a psychotherapist who is an unregulated provider under the Professional Services Guideline and therefore subject to the hourly rate of $99.75 as opposed to the $149.61 per hour rate claimed. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUE IN DISPUTE

2The parties agree that the narrow issue in dispute is as follows:

i. Is the applicant entitled to $598.32 for psychological services from Patrick Beedling, per the OCF-18 treatment plan dated June 2, 2020 in the total amount of $2,593.71?

result

3The applicant is not entitled to the $598.32 balance from the OCF-18, as the proposed rate is outside of the hourly fee provided by the Guideline.

ANALYSIS

Aviva’s partial approval

4On June 8, 2020, Aviva partially approved the sole treatment plan in dispute in the amount of $1,804.05 based on its determination that Mr. Beedling was subject to the psychotherapist treatment rate of $99.75 per hour under the Guideline. Aviva’s approval was based on Mr. Beedling’s resume submitted along with the OCF-18. While the applicant submitted an updated CV for this hearing, Aviva submits that both resumes confirm that Mr. Beedling has always practiced as either a psychotherapist or psychometrist and that he is not registered with the College of Psychologists of Ontario. Further, where Mr. Beedling does not hold himself out as having specialized training in cognitive behavioural therapy (“CBT”) and the subject OCF-18 only proposed counselling services, it submits that the proper hourly rate is $99.75, which is the rate it approved. For support, it cites numerous Tribunal decisions that have addressed the appropriate rate for unregulated providers not specifically identified by the Guideline.

5The applicant submits that the CBT proposed in the OCF-18 entitled Mr. Beedling to be paid the same hourly rate noted in the Guideline as a psychologist or psychological associate, being $149.61 per hour. The applicant asserts that Mr. Beedling has been providing him with regular CBT sessions and that his qualifications support the higher rate and full funding. To this end, he relies on the Tribunal cases J.V. and Intact Insurance Company, 2019 CanLII 76995 (ON LAT) and Scrofano and Aviva Insurance Company, 2020 ONLAT 18-012238/AABS.

Aviva’s approved rate is reasonable

6I agree with Aviva and find that it reasonably determined that the appropriate hourly rate under the Guideline for Mr. Beedling was $99.75. I follow the line of Tribunal cases that have distinguished J.V. and Scrofano, notably, Dhanji v. Aviva Insurance Company of Canada, 2021 CanLII 19424 (ON LAT) and Baranov v. Aviva General Insurance, 2020 CanLII 87933 (ON LAT), amongst others.²

7There is no dispute that the Guideline provides that, for non-catastrophic impairments, the maximum hourly rate for psychologists and psychological associates is $149.61. However, for psychometrists and counsellors (being family, rehabilitation, vocational), the maximum hourly rate is $58.19. For services provided by health care professionals, unregulated providers and other occupations not listed in the Guideline, the amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved. The parties also agree that the hourly rate for services provided by a psychotherapist is not listed in the Guideline.

8I agree with Aviva that Mr. Beedling’s CV’s confirm that his practice is as either a psychotherapist or psychometrist. His CV does not indicate that he is registered with the College of Psychologists of Ontario but rather with the College of Registered Psychotherapists of Ontario. While his CV indicates he incorporates CBT in treatment, it does not appear that he has any specialization or training in CBT that would make this case analogous to J.V. Further, and critically, I agree that the OCF-18 does not propose CBT but only 12 sessions of “counseling, mental health and addictions” with no additional comments to specify otherwise.

9Against these facts, and where psychotherapists like Mr. Beedling are not specifically listed, the Guideline provides that the applicable rate is to be determined by the parties. Here, while the default rate under the Guideline is $58.19, Aviva submits that it approved a reasonable rate of $99.75 per hour based on Mr. Beedling’s level of education and experience, which it submits is in line with the Tribunal’s jurisprudence. I agree.

10The facts here are nearly identical to those in Dhanji, where the practitioner was a psychotherapist with a Masters in Education who held himself out as a psychotherapist, where the proposed OCF-18 did not provide any CBT and where there was no indication of specialization in CBT. The Tribunal found that the applicant had not demonstrated that the higher rate was reasonable and necessary and found the lower rate approved (being $100 per hour) to be reasonable based on the practitioner’s education, experience and previous Tribunal cases that found the lower $58.19 rate applicable. Baranov is also instructive where the Tribunal found that the OCF-18 made no reference to CBT and only proposed psychotherapy treatment. The Tribunal agreed that the $99.75 hourly rate was appropriate where the psychotherapist who proposed treatment held both a master’s degree in psychology and a specialty in CBT. That is not the case here.

11Accordingly, the applicant has not met his burden of demonstrating that the $149.61 per hour rate for Mr. Beedling’s services is reasonable and necessary. The OCF-18 does not propose CBT and there is no evidence that Mr. Beedling has specialized training in same, even if he incorporates it into treatment. As a psychotherapist, he is not listed in the Guideline and therefore is not subject to the same rate as a psychologist. Instead, the Guideline provides that the applicable rate is to be determined by the parties, with Aviva taking a reasonable position, in line with the Tribunal’s recent jurisprudence, that that hourly rate is $99.75. On the evidence, the applicant has not provided support for his contention that he is entitled to the balance of the OCF-18 at the psychologist’s rate, as the higher rate for Mr. Beedling’s services is not reasonable and necessary.

ORDER

12The applicant is not entitled to the balance of the OCF-18.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2See, for e.g., S.K. v. Aviva Gen. Ins., 2020 CanLII 151087 (ON LAT); J.A. v. Aviva Ins. Co., 2020 CanLII 12726 (ON LAT); Levy v. Aviva Ins. Co., 2020 CanLII 51293 (ON LAT); S.M.Z. v. Aviva Ins. Co., 2020 CanLII 27401 (ON LAT)