Licence Appeal Tribunal

Citation: Yau v. Aviva Insurance Canada, 2023 ONLAT 21-011499/AABS

Licence Appeal Tribunal File Number: 21-011499/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:

Ming Tak Yau

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Teresa Walsh

APPEARANCES:

For the Applicant: Anil Hampole, Counsel Yu Denise Jiang, Paralegal

For the Respondent: Catherine Zingg, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Ming Tak Yau, the applicant, was injured in an accident on July 19, 2020, and sought benefits from the respondent, Aviva Insurance Canada, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").

2The respondent denied certain benefits on the basis that they were not reasonable and necessary. The applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

3The issues currently in dispute are:

i. Is the applicant entitled to $2,501.88 ($3,701.88 less approved $1,200.00) for psychological treatment, proposed by Somatic Assessments & Treatment Inc. in a treatment plan/OCF-18 ("plan") denied on April 28, 2022?

ii. Is the applicant entitled to $429.09 ($2,200.00 less approved $1,770.91) for the cost of a psychological assessment, proposed by Somatic Assessments & Treatment Inc. in a plan denied on June 30, 2021?

iii. Is the applicant entitled to $1,401.88 ($3,701.88 less approved $2,300.00) for psychological treatment, proposed by Somatic Assessments & Treatment Inc. in a plan denied on September 10, 2021?

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

4In their hearing submissions, each party identified different issues in dispute to be resolved at this hearing. However, following review of the Tribunal file, and specifically the Case Conference Report and Order ("CCRO") issued August 10, 2022, and Explanation of Benefits letters from the respondent to the applicant, I agree with the respondent that the issues in dispute are as set out in paragraph [3] above. As indicated in the CCRO, all issues identified in the applicant's hearing submissions were either withdrawn or resolved at the case conference.

RESULT

5I find that the applicant is not entitled to the unapproved balances on any of the three plans in issue. As no balances are owing, no interest is payable. The application is dismissed.

ANALYSIS

The applicant has failed to establish that the unapproved balances on the three plans are reasonable and necessary.

6The applicant needed to demonstrate that the unapproved balance on each of the three plans in dispute is reasonable and necessary. He has failed to do so.

7To receive payment for a medical benefit sought in a treatment plan 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.

8Issue number 2 in dispute involves a plan for a psychological assessment benefit while issue numbers 1 and 3 involve plans for psychological treatment benefits.

9The respondent's psychologist assessor, Dr. Arpita Biswas, noted that nearly two years post-accident, the applicant continued to demonstrate symptoms consistent with Adjustment Disorder with Mixed Anxiety and Depression – Chronic, directly related to the accident.

10On the basis of Dr. Biswas' reports, the respondent partially approved the plans for psychological treatment.

11For all three plans, the respondent's partial approval was also guided by the Professional Services Guideline issued as Superintendent's Guideline No. 03/14 (the "PSG"). The PSG establishes the maximum expenses payable for a range of health care services, medical benefits and case management services under the Schedule.

12As set out in further detail below, the applicant has put forward no evidence to counter Dr. Biswas' views or the respondent's submissions on amounts payable based on the PSG.

Issue number 2 – balance of $429.09 sought for a psychological assessment

13As explained in the respondent's submissions and supporting documents, the amount approved for the psychological assessment in issue number 2 – namely $1,770.91 – was based in part on the maximum hourly rate under the PSG for the provider involved. As a psychologist (Dr. Bruce Cook) carried out the assessment, $149.61 per hour was payable in accordance with the PSG. The approved amount also took into account the actual number of hours Dr. Cook spent in completing the assessment.

14The applicant has provided no evidence or submissions to suggest that the amount approved by the respondent for the psychological assessment plan in issue number 2 is incorrect, or otherwise unreasonable. Accordingly, I deny the balance of $429.09 sought by the applicant for this plan.

Issue number 1 - balance of $2,501.88 sought for psychological treatment

15As noted in paragraph [3] above, the respondent partially approved $1,200.00 for the psychological treatment plan addressed in issue number 1. In a June 22, 2022 report, the respondent's psychologist Dr. Biswas stated that eight of the 14 psychological treatment sessions proposed in the plan were reasonable and necessary. In Dr. Biswas' view, while the applicant's psychological status had not improved despite previous treatment, eight further sessions could provide some benefit and a subsequent re-assessment could address whether the applicant had reached maximum medical improvement. Two hours of document support activity was also approved as reasonable and necessary by Dr. Biswas. Additional planning/preparation fees and re-assessment fees included in the plan were denied by the respondent as being unreasonable.

16An hourly rate of $100.00 per hour for the eight psychological treatment sessions was approved by the respondent. The respondent noted that psychological services were being provided to the applicant by a social worker. The PSG does not provide a rate for social workers, and the rate proposed by the respondent was approximately mid-way between the PSG rates for unregulated providers ($58.19) and psychologists/psychological associates ($149.61). The respondent also relied on a recent Tribunal decision, Qian v. Aviva Insurance Company, 2022 CanLII 81517 (ON LAT) ("Qian"), where $100.00 was found to be a reasonable fee for a social worker provider.

17Dr. Biswas' June 22, 2022 report provides the most recent medical opinion on the applicant's psychological status. The applicant has provided no evidence to contradict Dr. Biswas' view that eight psychological sessions and two hours of document support are reasonable. Further, the applicant has not countered the respondent's proposed $100.00 per hour rate for a social worker to provide the psychological treatment. Finally, the applicant has not established that additional planning/preparation or re-assessment fees claimed are reasonable and necessary. In the circumstances, I find no basis for the balance claimed by the applicant for the psychological treatment plan in issue number 1. Accordingly, I deny the balance of $2,501.88 sought by the applicant for this plan.

Issue number 3 – balance of $1,401.88 sought for psychological treatment

18The respondent partially approved psychological treatment invoices under issue number 3 in the amount of $2,300.00. Approvals were based on the treatments being provided by a social worker at a proposed rate of $100.00 per hour.

19For the same reasons set out in response to issue number 2 above, I find the respondent's partial approval of the plan in issue number 3 to be reasonable. The hourly fee is in keeping with the PSG and the Tribunal decision in Qian. As with the other issues, the applicant has put forward no evidence to establish that the balance sought for the psychological treatment plan in issue number 3 is reasonable and necessary. Accordingly, I deny the balance of $1,401.88 sought by the applicant for this plan.

Interest

20As I have determined that no balances are owing for the three plans in issue, it follows that no interest is payable pursuant to section 51 of the Schedule.

ORDER

21For the reasons outlined above, I find that:

i. The applicant is not entitled to any of the balances sought in the three plans in issue, or interest.

ii. The application is dismissed.