Tong Liu v. Aviva Insurance Company of Canada, 2025 CanLII 111750

Citation: Liu v. Aviva Insurance Company of Canada, 2025 ONLAT 23-014264/AABS

Licence Appeal Tribunal File Number: 23-014264/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:

Tong Liu

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Rakesh Sharma, Counsel

For the Respondent: Yalda Aziz, Counsel

HEARD: By way of written submissions

OVERVIEW

1Tong Liu, the applicant, was involved in an automobile accident on May 10, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The 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.

PRELIMINARY ISSUES

2The preliminary issue in dispute is:

1. Is the applicant barred from proceeding to a hearing for the psychological services set out in subparagraph 3(1) below because the applicant failed to dispute their denial within the 2-year limitation period?

SUBSTANTIVE ISSUES

3The substantive issues in dispute are:

1. Is the applicant entitled to $1,327.34 ($3,981.88 less $2,654.54 approved) for psychological services, proposed by Somatic Assessments & Treatment Clinic in a treatment plan/OCF-18 (“treatment plan”) submitted August 30, 2021?
2. Is the applicant entitled to $1,901.88 ($3,701.88 less $1,800.00 approved) for psychological services, proposed by Somatic Assessments & Treatment Clinic in a treatment plan submitted April 4, 2023?
3. Is the applicant entitled to $995.36 ($2,355.36 less $1,360.00 approved) for psychological services, proposed by Somatic Assessments & Treatment Clinic in a treatment plan submitted July 14, 2023?
4. Is the applicant entitled to $995.36 ($2,355.36 less $1,360.00 approved) for psychological services, proposed by Somatic Assessments & Treatment Clinic in a treatment plan submitted September 29, 2023?
5. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

Preliminary issue:

4I find that:

1. The applicant is not barred from bringing her application for $1,327.34 for psychological services in a treatment plan submitted on August 30, 2021.

Substantive Issues:

5I find that:

1. The applicant is not entitled to the remaining amount of $1,327.34 in the treatment plan dated August 30, 2021.
2. The applicant is not entitled to the remaining amount of $1,901.88 in the treatment plan dated April 5, 2023.
3. The applicant is not entitled to the remaining amount of $995.36 in the treatment plan dated July 14, 2023.
4. The applicant is not entitled to the remaining amount of $995.36 in the treatment plan dated September 20, 2023.
5. As no payments are owing, no interest is due.
6. The applicant is not entitled to an award.
7. The application is denied.

ANALYSIS

PRELIMINARY ISSUE

6I find that the applicant filed her application within the two-year limitation period, and therefore she is not barred from bringing her application for the remaining $1,327.34 for psychological services in a treatment plan submitted on August 30, 2021.

7The limitation period for accident benefits claims is set out in s. 56 of the Schedule. It states that applications to dispute the denial of a benefit shall be commenced two years after the insurer’s refusal to pay the benefit.

8In order for s. 56 to be triggered, the respondent must have provided a valid notice of denial in accordance with the principles set out in Smith v. Co-operators General Insurance Company, 2002 SCC 30 (“Smith”). According to Smith, the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process, and it must provide valid or other reasons for the denial.

9Further, pursuant to T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (“T.F.”) and Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 (“Hedley”), the notice must provide a valid medical and any other reason for the denial.

10The respondent submits that the applicant should be barred from bringing an application for issue # 3.1 above, because it partially approved the treatment plan for $3,981.88 for psychological services dated August 30, 2021, on September 7, 2021, denying the treatment plan. The respondent subsequently approved the amount of $2,654.44 for the August 30, 2021 treatment plan on November 29, 2021, leaving a balance of $1,327.34. The respondent submits that the applicant did not dispute the denial of the balance until she filed her application on November 24, 2023, which was well outside the two-year limitation period to dispute a denial of a benefit.

11The applicant submits that she should not be barred from bringing the application for the treatment plan because the respondent did not properly notify the applicant of its intention to raise the preliminary issue prior in its Case Conference Summary, and because the final denial letter, on November 29, 2023, triggered the limitation period. Therefore, the applicant filed her application two days before the expiry of the two-year limitation period.

12I am not persuaded that the applicant did not have notice of the respondent’s intention to raise the preliminary issue. The respondent submits that it was first raised in the respondent’s response to the application on December 1, 2023, and it was raised again in its amended Case Conference Summary dated March 22, 2024, both of which were submitted into evidence by the respondent.

13However, I find that the September 7, 2021 EOB is not compliant with s. 38(8). The EOB consists of a denial of the treatment plan and a Notice of Examination (“NOE”). The denial does not identify the applicant’s injuries, nor does it request additional information it requires but does not have. Further, while the denial informs the applicant that she will be subject to an examination under s. 44, references the MIG and informs the applicant that she may invoice for $2,200.00, it does not define a minor injury, explain the MIG limit, or direct the applicant to an explanation of the MIG in the Schedule. Additionally, I find the EOB confusing, because the NOE provides a different reason for the s.44 psychological examination, which identifies the applicant’s physical injuries, but does not mention of a psychological condition.

14As a result, I find that the September 7, 2021 EOB is not sufficiently clear or detailed to allow an unsophisticated person to make an informed decision about whether to dispute the notice. As such, I find that the respondent may not rely on the September 7, 2021 EOB to mark the beginning of the limitation period.

15The applicant submits that the limitation period should begin on November 29, 2021, the date of the respondent’s final denial. As the application was filed less than two years later, on November 24, 2023, I find that the applicant is not barred from bringing the application for the treatment plan dated August 30, 2021.

SUBSTANTIVE ISSUES:

16To receive payment for a treatment and assessment plan under s. 15 and 16 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.

Is the applicant entitled to $1,327.34 ($3,981.88 less $2,654.54 approved) for psychological services in a treatment plan submitted August 30, 2021?

17I find that the applicant has not established on a balance of probabilities that the remaining amount of $1,327.23 for psychological services in the treatment plan dated August 30, 2021 is reasonable and necessary.

18The goals of the treatment plan, prepared by Dr. Sharleen McDowall, are: “to challenge and reduce negative thought patterns by utilizing cognitive restructuring techniques to deal with anxiety and depressive feelings and cognitions” and a return to activities of daily living.

19The treatment plan sets out 14 1.5 hour sessions of psychotherapy at a rate of $149.61 for a total of $3,141.88, $360.00 for a progress report, $200.00 for the preparation of the treatment plan, and $280.00 for transportation. The respondent partially approved $2,564.54 inclusive of: 12 one-hour physiotherapy sessions at a rate of $149.61, $299.22 for a progress report, and $200 for the preparation of the report, and denied the transportation costs, relying on the s. 44 insurer examination (“IE”) report of Fabio Salerno, psychologist, dated November 26, 2021.

20The applicant did not dispute the denial of the transportation costs.

21The applicant submits that the balance of the treatment plan should be approved in full because the respondent should rely on Dr. McDowall’s recommendation for 14 90-minute sessions of psychotherapy in the treatment plan over the recommendations of their s.44 assessor. The applicant further submits that in his IE report, Mr. Salerno did not explain why he reduced the number of treatment sessions from 14 to 12, or his reasons for recommending a reduced amount for the progress report.

22However, the applicant has not provided any medical evidence to support the treatment plan or its specific recommendations. Further, the applicant has not directed me to any evidence to establish that the costs of the treatment plan are reasonable. As the respondent notes, the Tribunal has long held that a treatment plan in and of itself does not prove that a treatment plan is reasonable and necessary, and must be supported by objective medical evidence. In the present case the applicant relies solely on Dr. McDowall’s August 31, 2021 treatment plan, which refers to a progress report which was not attached to the treatment plan or submitted into evidence by the applicant.

23As a result, I find that the applicant has not met her onus to prove on a balance of probabilities that the remaining balance of the treatment plan is reasonable and necessary. Accordingly, the applicant is not entitled to $1,327.34 for the remaining balance of the treatment plan for psychological services dated August 31, 2021.

Is the applicant entitled to $1,901.88 ($3,701.88 less $1,800.00 approved) for psychological services in a treatment plan submitted April 5, 2023?

24The goals of the treatment plan, prepared by Raymond Wong, occupational therapist, are: “to challenge and reduce negative thought patterns by utilizing cognitive restructuring techniques to deal with anxiety and depressive feelings and cognitions” and a return to activities of daily living.

25The treatment plan sets out 14 1.5-hour sessions of psychotherapy to be provided by Mandy Fang, social worker, at a rate of $149.61 per hour, a progress report at a cost of $360.00 and $200.00 for the completion of the treatment plan.

26The respondent approved 14 one-hour sessions of psychotherapy at a rate of $100.00 per hour, $200.00 for the progress report, and $200.00 for the completion of the treatment plan.

27The applicant submits that the sessions should be 90 minutes in length based on the recommendations on the treatment plan, because the respondent is relying on Mr. Salerno’s IE report which was over a year old when the treatment plan was submitted. Because the applicant has not provided any reasons or evidence to support 90 minute sessions, I find that the applicant has not met her onus to prove on a balance of probabilities that the length of the treatment sessions requested is reasonable and necessary.

28The applicant further argues that the rate should be $149.61 for both the psychotherapy sessions and the progress report, because there is no rate set out for a social worker in the Professional Services Guideline and Ms. Fang is providing the same services as a psychologist.

29The respondent argues that the applicant has not provided any evidence that the Ms. Fang has additional qualifications which would attract a higher rate for the psychological treatments proposed in the treatment plan. The respondent relies on various Tribunal decisions, including Rawana v. Aviva Insurance Company, 2021 (ONLAT) which found that $100.00 per hour was a reasonable rate for social workers providing psychotherapy.

30The fee for services provided through the Schedule is governed by the Professional Service Guideline (“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, 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. The onus remains on the applicant to prove that it is reasonable on a balance of probabilities.

31I agree with the respondent. The applicant has not directed me to any evidence to indicate that Ms. Fang has additional qualifications or training to attract a rate higher than the $100.00 per hour approved by the respondent. Therefore, I find that the applicant has not met her onus to prove on a balance of probabilities that the hourly rate requested in the treatment plan is reasonable, and the amount is not payable.

32Accordingly, I find that the applicant is not entitled to the remaining $1,901.88 in the treatment plan for psychological services in the treatment plan dated April 5, 2023.

Is the applicant entitled to:

i. $995.36 ($2,355.36 less $1,360.00 approved) for psychological services in a treatment plan submitted July 14, 2023. and

ii. $995.36 ($2,355.36 less $1,360.00 approved for psychological services, in a treatment plan submitted September 29, 2023?

33The amounts in dispute in the treatment plans for psychological services dated July 14, 2023 and September 29, 2023 both relate to the hourly rate for the services of Ms. Fang. The applicant argues that the rate should be $149.61 per hour, while the respondent approved a rate of $100.00 per hour.

34I find that the applicant has not met her onus to prove that the rate of $149.61 per hour is reasonable and necessary for the reasons outlined in paragraphs 31 and 32 above.

35Accordingly, I find that the applicant is not entitled to the remaining $995.36 for psychological services in the July 14, 2023 treatment plan or the remaining $995.36 for psychological services in the September 29, 2023 treatment plan.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

Award

37The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As no payments have been unreasonably withheld or delayed, I find that the applicant is not entitled to an award.

ORDER

38I find that:

1. The applicant is not entitled to the remaining amount of $1,327.34 in the treatment plan dated August 30, 2021.
2. The applicant is not entitled to the remaining amount of $1,901.88 in the treatment plan dated April 4, 2023.
3. The applicant is not entitled to the remaining amount of $995.36 in the treatment plan dated July 14, 2023.
4. The applicant is not entitled to the remaining amount of $995.36 in the treatment plan dated September 20, 2023.
5. As no payments are owing, no interest is due.
6. The applicant is not entitled to an award.
7. The application is dismissed.