Han v. Aviva General Insurance, 2023 CanLII 9225

Citation: Han v. Aviva General Insurance, 2023 ONLAT 21-003738/AABS

Licence Appeal Tribunal File Number: 21-003738/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:

Yang Bai He Han

Applicant

and

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR: Chloe Lester

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Rozlien Brikha, Counsel

Written Hearing: September 29, 2022

REASONS FOR DECISION

BACKGROUND

1The applicant, Yang Bai He Han, was involved in an automobile accident on July 27, 2017 when she lost control of her vehicle and it collided with a light pole.

2Based on her initial injuries, the applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)¹.

3Upon review of the various treatment plans the respondent, Aviva Insurance Company, partially approved the treatment plans.

4The applicant disagrees with the respondent’s determination and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service² (“Tribunal”) to dispute Aviva’s decision.

ISSUES

5The issues in dispute for this hearing are:

a. Is the applicant entitled to the remainder of a partially approved catastrophic assessment treatment plan in the amount of $8,576.81?

b. Is the applicant entitled to the remainder of a partially approved psychological treatment plan in the amount of $360.00³?

c. Is the applicant entitled to the remainder of a partially approved psychological treatment plan in the amount of $1,407.20?

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

e. Is the respondent liable to pay an award under Regulation 664⁴ because it unreasonably withheld or delayed payments?

RESULTS

6The applicant is entitled to $2,000.00 for an overall assessment and final rating report and interest, if applicable, and in accordance with the Schedule.

CATASTROPHIC ASSESSMENT TREATMENT PLAN

7The applicant argues that the catastrophic assessment plan in the amount of $14, 776.81, less the approved amount of $6,200.00, is reasonable and necessary. She argues that section 25 of the Schedule specifies that the insurer shall pay for all assessments to determine whether someone is catastrophically impaired, up to $2,000.00 per assessment, excluding HST. She argues that the remaining recommended assessments should be approved to properly assess the applicant to determine whether she is catastrophically impaired. The unapproved amounts relate to:

a. Completion of the OCF-19 certificate;

b. Overall assessment and final rating report;

c. Clinic file review assessment by Dr. Joseph Wong;

d. Clinic file review assessment by Raymond Wong;

e. Clinic file review assessment by Dr. Naisi; and

f. Translation, transportation and travel time.⁵

8The applicant relies on 17-006757 v. Aviva⁶, wherein Adjudicator Paluch states that accident victims should promptly receive the benefits they are entitled to under the Schedule to avoid injustice and hardship. The applicant argues the treating providers recommended the above assessments to conduct a proper catastrophic assessment. The applicant submits that since the respondent also conducted an overall rating summary assessment, the applicant should be entitled to one as well.

9The respondent argues the applicant was aware of what assessments were being approved and which ones were being denied via a letter dated January 25, 2022⁷. The respondent argues that additional costs for a file review are not reasonable and necessary considering the Schedule is clear that each individual assessment should not exceed more than $2,000.00. The respondent relies on various decisions from the Tribunal to further support that a file review is considered a duplicative service and should be included in the cost of conducting the assessment.⁸

10I find that the overall assessment and rating report is reasonable and necessary and the remaining fees are not payable. Considering the respondent required a very similar report to conduct its own catastrophic assessment, it is only fair and in consideration that the Schedule is a consumer protection legislation, that the applicant is able to conduct her own as well.⁹ Also, I find that a file review summary is reasonable considering the request was for a catastrophic assessment and the medical on the file would be voluminous.

11The applicant has not outlined any specific submissions why each assessor required its own file review assessment, whether the applicant met the requirements for transportation and why translation services were required.

12Therefore, the applicant is only entitled to $2,000.00 for a rating summary report and the remaining assessments and services are not reasonable and necessary.

PSYCHOLOGICAL TREATMENT PLAN DATED MARCH 25, 2020 and July 30, 2020

13The applicant submitted a psychological treatment plan dated March 25, 2020. The request was for treatment and a progress report. The respondent approved the treatment only in a letter dated April 7, 2020. That letter also indicated that if the psychologist was providing the treatment, then it would be paid at a rate of $149.61 per hour, and if it was being provided by a psychotherapist, $99.75 per hour.¹⁰

14A similar letter was received after an additional psychological treatment plan was submitted on July 30, 2020.¹¹

15The applicant argues that the progress report should be paid. She also argues that since registered psychotherapists are not covered under the Professional Services Guideline¹², it is incumbent on the parties involved to agree to the amounts payable for the treatment provided. The applicant argues that since the services provided by the psychotherapist were under the direct supervision of Dr. Cook, the psychologist, that they ought to be paid at the psychological services rate of $149.61 per hour.¹³ The applicant relies on two decisions from the Tribunal where the adjudicators decided that if a psychotherapist is providing cognitive behavioural therapy similar to the same treatment as a psychologist, then they should be paid at the same rate.¹⁴

16The respondent argues the applicant has not advanced any arguments to support her position that a progress report is reasonable and necessary. On that basis alone the report should not be considered payable.

17The respondent argues that the rate a psychotherapist is paid is regularly $99.75 per hour. It argues that a psychotherapist is not akin to a psychologist and therefore they should not be paid at the same hourly rate. It relies on two decisions from the Tribunal that supports the same sentiment.¹⁵

18The onus is on the applicant to prove entitlement to the disputed issues. The applicant has not advanced any arguments why a progress report is reasonable and necessary. On that basis alone, I find the applicant is not entitled to payment for it.

19Secondly, I agree with the respondent that a psychotherapist should not be paid the same hourly rate as a psychologist. A psychologist is not a similar discipline nor requires similar schooling as a psychotherapist. A psychologist can diagnose disorders whereas a psychotherapist cannot. Therefore, I agree with and adopt similar reasoning in Hawes v Aviva General Insurance Company¹⁶. A psychotherapist provides treatment for an already diagnosed disorder, similar to an occupational therapist or physiotherapist providing treatment for a diagnosed physical impairment. Therefore, it is logical that they are paid at the same hourly rate dictated in the Guideline at $99.75 per hour.

20Lastly, I have no evidence to support the type of supervisory care provided by Dr. Cook or the amount of time he might have consulted with the treating psychotherapist. Therefore, any payments for supervisory services provided by Dr, Cook would not be considered payable.

CONCLUSION

21The applicant is entitled to an overall assessment and final rating report in the amount of $2,000.00, and if applicable, with interest in accordance with the Schedule.

22The applicant is not entitled to the other issues in dispute.

23The applicant did not provide submissions for an award, and therefore the issue is dismissed.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 as amended. (“Schedule”)
2. 2Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”)
3. 3The applicant in no longer disputing the transportation costs as outlined in the treatment plan. The only amount in dispute is $360.00
4. 4R.R.O. 1990, Reg. 664: AUTOMOBILE INSURANCE
5. 5Applicant’s Brief Tab 11
6. 6Tab 20 - 17-006757 v. Aviva Insurance Company, 2018 CanLII 81949 (ON LAT)
7. 7Respondent’s Brief Tab 6
8. 8Z.J. v Aviva Insurance Company of Canada, 2020 CanLII 37597 (ON LAT) ; 16-004501 v. The Sovereign General Insurance Company, 2018 CanLII 13158 (ON LAT)
9. 9Applicant’s Brief Tab 18
10. 10Applicant’s Brief Tab 9
11. 11Respondent’s Brief Tab 15 and 16
12. 12Superintendent Guideline 03/14 (“Guideline”) issued pursuant to s. 268.3(1) of the Insurance Act
13. 13Applicant’s Brief Tab 7
14. 14J.V v. Intact Insurance Company, 2019 CanLII 76995 (ON LAT) ; A.S. v. Aviva Insurance Company, 2020 CanLII 12787 (ON LAT)
15. 15Diflorio v. Aviva Insurance Company, 2021 CanLII 111152 (ON LAT); Hawes v Aviva General Insurance Company, 2022 CanLII 70525 (ON LAT)
16. 16Hawes v Aviva General Insurance Company, 2022 CanLII 70525 (ON LAT)