Citation: Zhang v. Aviva Insurance Company of Canada, 2024 ONLAT 22-012123/AABS
Licence Appeal Tribunal File Number: 22-012123/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:
Di Zhang
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Melanie Malach
SUBMISSIONS BY:
Applicant: Anil Hampole, Counsel
Respondent: Frank Comella, Counsel
Written Hearing: Heard by way of written submissions
OVERVIEW
1Di Zhang, the applicant, was involved in an automobile accident on October 1, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $1,207.56 ($3,701.88 less $2,494.32 approved) for social worker counseling services from Somatic Assessments & Treatment Clinic proposed by Dr. Sharleen McDowall in a treatment plan, dated May 27, 2021, denied June 9, 2021?
ii. Is the applicant entitled to $1,905.88 ($3,701.88 less $1,796.00 approved) for social worker counseling services from Somatic Assessments & Treatment Clinic proposed by Dr. Sharleen McDowall in a treatment plan, date September 28, 2021, denied October 20, 2021?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant is not entitled to the unapproved balance of the disputed treatment plans. As such no interest or award under s.10 of Reg. 664 is payable.
ANALYSIS
Hourly Rate Payable
5The unapproved portions of the two treatment plans in dispute relate to the hourly rate payable for psychological services provided by Mandy Fang who is identified as a social worker in the applicable treatment plans. The applicant claims that the hourly rate should be $149.61 per hour and the respondent claims that the hourly rate should be $99.75 per hour. As both of the treatment plans were partially approved on the same basis and have the same hourly rate in dispute, I will consider them together.
6The fee for services provided through the Schedule is governed by the Professional Services Guideline issued as Superintendent’s Guideline No. 03/14 (the “Guideline”). The Guideline establishes the maximum expenses payable for a range of health care services, medical benefits and case management services. The maximum hourly rate for psychologists and psychological associates is $149.61 per hour. The rate provided for unregulated professionals is $58.19 per hour. The amounts payable by an insurer related to professional services not covered by the Guideline are to be determined by the parties involved.
7The Guideline does not specify a rate for social workers. Rather, the rate stipulated for unregulated providers, such as counsellors and psychometrists, is $58.19 per hour. Given the Guideline is silent on the maximum hourly rate for a social worker, it is left to the parties to determine what the acceptable hourly rate would be. However, this does not automatically entitle the applicant to the higher hourly rate. Rather, he must still prove that it is reasonable on a balance of probabilities.
8The applicant submits that Ms. Fang is entitled to the hourly rate of $149.61, commensurate with that of psychologists and psychological associates, as her services are being completed under the supervision of a psychologist.
9The respondent submits that the hourly rate for Ms. Fang who is a social worker is $99.75. It further