Hawes v. Aviva General Insurance Company, 2022 CanLII 70525

Citation: Hawes v. Aviva General Insurance Company, 2022 ONLAT 20-009483/AABS

Licence Appeal Tribunal File Number: 20-009483/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:

Margaret Hawes

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Sherilyn Pickering, Counsel

For the Respondent:

Alexander Dos Reis, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1Margaret Hawes, (“the Applicant”), was injured in an automobile accident on September 14, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Aviva General Insurance Company, (“the Respondent”).

2The Applicant claimed entitlement to psychological treatment, outlined in two treatment plans. The Respondent partly approved the treatment plans. Predominantly at issue, is whether the Applicant is entitled to receive psychological treatment at an hourly rate of $149.61 per hour, instead of the rate approved by the Respondent, which is $100.00 per hour.

3In addition to the dispute regarding the hourly rate of the service provider, the parties disagree as to whether the Applicant is also entitled to certain documentation fees as well as relaxation materials/psychological workbooks.

4The Applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

ISSUES IN DISPUTE

5The following issues are to be decided:

1. Is the Applicant entitled to a medical benefit in the amount of $3,396.87, less the amounts approved by the Respondent to-date, for a treatment plan dated November 7, 2018?;

2. Is the Applicant entitled to a medical benefit in the amount of $2,050.35, less the amounts approved by the Respondent to-date, for a treatment plan dated April 9, 2018?; and

3. Is the Applicant entitled to interest on any overdue payment of benefits?

6Applicant referred to a dispute regarding the payment of an approved psychological assessment. The issue is not listed in the Case Conference Report and Order dated January 12, 2021 and is not addressed by the Respondent. I find it is not properly before me and I decline to comment on it.

RESULT

7I find that the Applicant is not entitled to the unapproved balance of the disputed treatment plans. No interest or costs are payable.

BACKGROUND

8The fee for services provided through the Schedule is governed by the Professional Services Guideline (“the PSG”)², as outlined in section 49(1) of the Schedule. Pursuant to the PSG, the Respondent is not liable to pay for expenses related to professional services rendered to an insured person that exceed the maximum hourly rates set out in it. Further, the PSG provides that the maximum hourly rate for psychologists and psychological associates is $149.62. The rate provided for unregulated professional is $58.19 per hour. Relevant to this dispute, the PSG states: services provided by health care professionals/providers, unregulated providers and other occupations not listed in the Guideline are not covered by the Guideline. The amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved³.

9Tribunal cases vary on the issue and currently there is no higher authority which would serve as precedent and bind me on the issue. However, the Tribunal has determined that it has the authority to resolve disputes over the hourly rate of a service provider, as is the case in I.B. v Aviva Insurance Company of Canada (“IB”)⁴. I adopt the reasoning in IB and find that I have the jurisdiction to hear this dispute.

10To-date, the Respondent has agreed to pay the Applicant’s psychologist at the rate of $