Xue v. Aviva General Insurance, 2023 CanLII 7278

Citation: Xue v. Aviva General Insurance, 2023 ONLAT 20-004070/AABS

Licence Appeal Tribunal File Number: 20-004070/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:

Qing Xue

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Janet Rowsell

APPEARANCES:

For the Applicant:

Yu Jiang Paralegal

For the Respondent:

Shivani Mehta, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Qing Xue, (“applicant”), was involved in an automobile accident on January 6, 2018, and sought benefits from Aviva General Insurance, (“respondent”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).The applicant was denied entitlement to part of a psychological treatment plan by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

2The applicant was involved in a motor vehicle accident as a seat-belted driver, where a third-party vehicle reversed and struck the applicant’s vehicle while stopped in the centre lane. Following the collision, the applicant described that she followed the vehicle, which reversed and caused the collision, when the third-party vehicle left the scene without the driver of the vehicle, exchanging identifying information.¹

3The applicant attended the North York General Hospital² on January 7, 2018, (the notes taken by the physician are largely illegible except for mention of spinal pain, dizziness and nausea). She consulted with her family physician Dr. Andrew Wan on February 3, 2018,³ describing symptoms of dizziness and weakness following the accident and commenting that she commenced physiotherapy. The family physician’s notes are illegible otherwise but there is no apparent prescription for pain medication rendered on February 3, 2018, nor on February 26, 2018, when the applicant returns with health concerns, non-accident related. On May 31, 2018, there is mention in the records of “Tylenol”, however, the notes are illegible, thus, it is unclear whether the physician is recommending purchasing non-prescription Tylenol. The prescription summary provided in the Applicant’s submissions does not include, in the year 2018, any prescriptions for pain medication. The applicant consulted Dr. Wan regarding problems with sleep (on July 16, 2018), and issues of depression and insomnia (on January 16, 2019), in addition to consultations for depression and insomnia on March 25, 2019, and on August 23, 2019.

ISSUES

4The issues in dispute are:

i. Is the applicant entitled to a medical benefit in the amount of $803.12 ($2,200.00, less 1,396.88 approved by the respondent) for a psychological assessment proposed in an OCF-18 dated February 2, 2018?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the unapproved balance of the psychological assessment plan is not reasonable and necessary. As a result, the applicant is not entitled to the unapproved balance of the treatment plan. Given that there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

BACKGROUND

6The parties agree that a psychological assessment is reasonable and necessary as a result of the accident. The parties disagree as to what the reasonable cost of the assessment should be.

ANALYSIS

7I find that the Applicant has not met her onus to demonstrate that she is entitled to the unapproved balance of the psychological assessment.

8Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the motor vehicle accident. The applicant bears the onus of proving, on a balance of probabilities, that any proposed treatment or assessment plan is reasonable and necessary. There has to be objective medical evidence to substantiate the reasonableness and necessity of the proposed treatment plan. Treatment and Assessment Plans by themselves do not prove that the treatment proposed is reasonable or necessary.

9The Professional Services Guideline Number 03/14 (“Guideline”), published by Financial Services Commission of Ontario, establishes the maximum expenses payable by automobile insurers under the Schedule related to the services of any health care professional or health care providers listed in the Guideline.⁴ Although, insurers are not prohibited from paying above any maximum amount or hourly rate established in the Guideline, the maximum hourly rate for a psychologist is established at $149.61 in a non-catastrophic claim.⁵

10Pursuant to section 25 (3) of the Schedule, an insurer is not liable to pay for expenses incurred by or on behalf of an insured person related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guideline. In addition, pursuant to section 25 (5)(a), an insurer shall not pay more than a total of $2,000 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019, in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer.

11Dr. Sharleen McDowell prepared the OCF-18 dated February 2, 2018, in which she describes the sequelae of the applicant’s injuries include anxiety, depressive disorder, headache, phobias, dizziness and giddiness, nonorganic sleep disorders, nightmares, in addition to malaise and fatigue. Dr. McDowell recommends in the OCF-18 that a clinical interview and psychometric testing is appropriate for the purpose of the psychological assessment.

12The Applicant submits that by reason of additional language issues, and complexities in the applicant’s case, that the preparation of the psychological assessment, was justified in the disputed OCF-18, in the amount of $2200.00. However, the Respondent submits that the number of hours for the purpose of evaluating the applicant and preparing the report is not set forth in the OCF-18, which is a significant omission for the purpose of assessing the time taken by Dr. Sharleen McDowell or Jian Su, Ed.D, in the preparation of the psychological assessment. In addition, the Applicant has not produced evidence regarding the identity of the person who conducted the interview with the applicant, the hourly rate charged by the interviewer of the applicant, nor which of the two parties co-signing the psychological assessment, Dr. Sharleen McDowell and Jian Su, actually prepared the report. Although, Dr. Sharleen McDowall is listed on the OCF-18 as the healthcare provider, the assessment report shows that the assessment was co-conducted by Jian Su, Ed.D. The report indicated that Jian Su was working under the supervision of Dr. Sharleen McDowall, a Registered Psychologist.

13The Respondent submits that it approved a reasonable fee for the psychological assessment. It bases its opinion on remarks made in the section 44 Insurer’s Examination, (“IE”), Assessment report of Dr. Fabio Salerno, Psychologist, dated June 18, 2018.⁶ Dr. Salerno concluded that the proposed cost of $2,200.00 was not reasonable and he opined that a more reasonable breakdown would include a consideration that eight hours would be payable to complete a psychological interview, administer psychometric testing and for the purpose of the preparation of a report. From this, Dr. Salerno concluded that a reasonable cost for the disputed psychological assessment would be $1,196.88, plus an additional $200.00 for completion of the OCF-18.

14Given the hourly rate established for a psychologist as $149.61, in the Professional Services Guideline Number 03/14, previously cited. Given the direction in the Schedule at section 25(5)(a) respecting the maximum cost of an assessment payable by an insurer, and the opinion of Dr. Fabio Salerno who assessed the disputed services of Dr. Sharleen McDowell in preparing the OCF-18 and her report, I find that the opinion offered in the section 44 IE Assessment is persuasive because it addresses accepted hourly rates set by the Professional Services Guideline and amounts payable pursuant to the Schedule for the purpose of assessment under section 25(5) of the Schedule. In addition, Dr. Salerno establishes his expertise in the area of performing the psychological assessment performed by Dr. Sharleen McDowell, which adds evidentiary weight to his opinion respecting the duration billable for the purposes of executing the psychological assessment of the applicant.

15An assessment plan must provide a breakdown of the different methodologies provided as part of the assessment and an estimate of the time required to complete those tasks. The assessment plan here does not include that information.

16I note the decision of Adjudicator Deborah Neilson where Adjudicator Neilson was unable to conclude that the proposed fees for a psychological assessment were reasonable without being provided with the hourly rate and fee breakdown.⁷

17The disputed OCF-18 does not to provide any breakdown as to the components of the assessment process, in terms of the duration of time or an hourly rate for the services, i.e. interview of applicant, psychometric testing, preparation of the report. The omission from the disputed OCF-18 of Dr. Sharleen McDowall’s hourly rate, the hourly rate of the healthcare provider assisting with the report and the amount of time the secondary provider spent working on the report with Dr. Sharleen McDowell, are material omissions, which cause me to prefer the evidence offered in the IE report by Dr. Salerno as offering a reasonable amount of time and expense for the purpose of preparing the psychological assessment report of eight hours.

18An assessment plan must provide a breakdown of the different methodologies provided as part of the assessment and an estimate of the time required to complete those tasks. The assessment plan here does not include that information and, on this basis, I find that the Applicant has not met her burden to demonstrate that she is entitled to the unapproved balance of the psychological assessment plan dated February 2, 2018.

CONCLUSION

19I find that the applicant has not met the burden of proof, by demonstrating, on a balance of probabilities, that the applicant is entitled to $803.12 as a reasonable and necessary expense, in addition to the approved amount for the OCF-18 in dispute in the amount of $1,396.88 payable by the respondent insurer, for a psychological assessment recommended by Dr. Sharleen McDowell in an OCF-18 dated February 2, 2018. Given that there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

20The application is dismissed.

Footnotes

1. 1Applicant’s Submissions, page 1, paragraph 1.
2. 2Applicant’s Submissions, Tab 1, Emergency Report of North York General Hospital dated January 7, 2018.
3. 3Applicant’s submissions, Tab 2, medical records of Dr. Andrew Wan, July 5, 2020.
4. 4Financial Services of Ontario, Professional Services Guideline Number 03/14, p. 2.
5. 5Financial Services of Ontario, Professional Services Guideline Number 03/14, page 5.
6. 6Respondent’s Submissions, Tab 6, Section 44 IE Psychological Report, dated June 18, 2018
7. 7Respondent’s Submissions, Tab 5, 16-004031 and State Farm (2018 CanLII 2312 (ON LAT)).