Wang v. Aviva Insurance Company of Canada, 2025 CanLII 126001

Citation: Wang v. Aviva Insurance Company of Canada, 2025 ONLAT 24-002239/AABS

Licence Appeal Tribunal File Number: 24-002239/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:

Zi Wang

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Sareena Samra, Counsel

For the Respondent: Simran Walia, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Zi Wang, the applicant, was involved in an automobile accident on December 4, 2022, 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.

ISSUES

2The issues in disputes are:

i. Is the applicant entitled to $1,492.92 ($3,252.92 less $1,760.00 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 (“plan”) submitted August 15, 2022?

ii. Is the applicant entitled to $330.00 ($2,200.00 less $1,870.00 approved) for an Assessment of Attendant Care Benefits, proposed by Somatic Assessments and Treatment Clinic in a plan submitted June 30, 2023?

iii. Is the applicant entitled to $746.46 ($1,906.46 less $1,160.00 approved) for an Assessment of Attendant Care Benefits, proposed by Somatic Assessments and Treatment Clinic in a plan submitted April 2, 2024?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant is not entitled to any of the disputed treatment plans.

4No interest or award is granted.

ANALYSIS

5To 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 and necessary.

Unapproved portions of all the treatment plans are not reasonable and necessary

6I find that the applicant has not proven on a balance of probabilities that the unapproved portions of the treatment plans for $1,492.92 ($3,252.92 less $1,760.00 approved) dated August 15, 2022, $746.46 ($1,906.46 less $1,160.00 approved) dated April 2, 2024, and $330.00 ($2,200.00 less $1,870.00 approved) dated June 30, 2023, are reasonable and necessary.

7The disputed portions of these treatment plans relate to two items. First, while the applicant seeks payment of $149.61 per hour for the psychological services to be provided in the plans dated August 15, 2022, the respondent agreed to an adjusted hourly rate of $100.00, as the services are to be provided by a social worker, not a psychologist. Second, the other denied portion relates to additional fees including: planning services and counselling, brokage fees and preparation service. The applicant contends that these are not valid grounds for denial under section 38(8), and asserts that counselling, planning, and reporting are essential to tracking treatment progress, identifying goals, and addressing barriers to recovery.

8The fees for services provided under the Schedule are governed by the Financial Services Commission of Ontario – Professional Services Guideline, Superintendent’s Guideline No. 03/14 (the “PSG”). The PSG provides that the maximum hourly rate for services provided by psychologists is $149.61. The PSG does not provide a maximum hourly rate for social worker services, instead stating that amounts payable by an insurer related to services not covered by the PSG are to be determined by the parties involved.

9The PSG also includes administration costs, overhead and related costs, fees and expenses which may be sought for professional services. The PSG states that insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the PSG.

10The applicant’s submissions focus on the denied hourly rate for the services to be provided by the social worker, Mr. Man Wai Szeto. The applicant argues that Mr. Szeto is entitled to be paid at the same hourly rate as a psychologist for “services within his expertise.” The applicant relies on a Tribunal decision in support of his position, [A.S.] v. Aviva, 2020 CanLII 12787 (ON LAT). Further, the applicant argues that the hourly rate sought for Mr. Szeto is based on the applicant requiring interpretation services and that “only a specific service provider can provide the necessary treatment with interpretation.”

11The respondent submits that the case law relied on by the applicant is distinguishable here because the applicant has not produced any information regarding Mr. Szeto’s education, training and experience regarding any particular psychological treatment, including cognitive behaviour therapy. In support of its position, the respondent references a number of Tribunal decisions which are more recent than those relied on by the applicant, where the Tribunal found that the PSG hourly rate for psychologists is based on their specialized education, training and experience, which is distinguishable from a psychotherapist’s education, training and experience. Accordingly, the Tribunal in those cases found that the social worker and psychotherapist providing the services in issue were not entitled to the same hourly rate as a psychologist (see, for example, Hawes v. Aviva General Insurance Company, 2022 CanLII 70525 (ON LAT), Han v. Aviva General Insurance, 2023 CanLII 9225 (ON LAT), and Bowen v. Aviva Insurance Company, 2024 CanLII 23451 (ON LAT)).

12Further, the respondent argues that neither of the psychological treatment plans include interpretation costs.

13Regarding the additional fees sought by the applicant for the psychological treatment plans, the respondent submits that as set out in the PSG and outlined in its denial letters, these fees are not payable as they result in an increase in the hourly rate and are included in the $200.00 “completion fee”, which the respondent approved.

14I find that the applicant has not established that the denied portions of the treatment plans are reasonable and necessary. In this case, the applicant did not identify any evidence regarding Mr. Szeto’s professional qualifications to support his submission that as a social worker, an unregulated health professional under the PSG, Mr. Szeto should be paid at the same hourly rate as a psychologist. Further, the applicant did not point to, nor did I identify, any information in the two assessments and one psychological plan regarding interpretation being required as part of the psychological services, or supporting Mr. Szeto’s ability to provide such interpretation. Accordingly, I find that the applicant has not met his onus in establishing that the $149.61 hourly rate for Mr. Szeto’s psychotherapy services is reasonable and necessary.

15Regarding the additional fees sought for these treatment plans, the applicant has neither directed me to any evidence, nor made any submissions, as to why these fees are reasonable and necessary. The applicant bears the onus of proof in establishing that a benefit or fee is reasonable and necessary. Without any specific submissions on this point, I find that the applicant has not met his onus to demonstrate that the fees are reasonable and necessary.

16In summary, I find that the unapproved amounts of the treatment plans in the amount of $1,492.92 ($3,252.92 less $1,760.00 approved) dated August 15, 2022, and $746.46 ($1,906.46 less $1,160.00 approved) dated April 2, 2024, and $330.00 ($2,200.00 less $1,870.00 approved) dated June 30, 2023, are not reasonable and necessary.

All of the denial letters dated, August 22, 2023, July 10, 2023, and April 14, 2024, for psychological assessments and treatment plan comply with s. 38(8) of the Schedule

17I find that the respondent’s denial letters dated August 22, 2023, July 10, 2023, and April 14, 2024, denying the psychological treatment and assessments comply with s. 38(8) of the Schedule.

18The applicant submits that the denial letters for the three treatment plans fail to comply with s. 38(8) as the respondent does not give medical/relevant reasons for the denials.

19The respondent submits that the denial letter dated the August 22, 2023, stipulates that the respondent would pay for social work treatment at a rate of $100.00 per hour based on a social worker providing the services, and that the respondent would not pay for the additional fees.

20The July 10, 2023, letter from the respondent states the reasons for not paying for the planning service, namely that the applicant’s provider has not detailed how the proposed services will directly contribute to the applicant’s recover. Similarly, the respondent indicates that they are not agreeable to pay for counseling as the applicant’s provider has not detailed how the proposed services will contribute to the applicant’s recovery.

21The April 14, 2024, letter from the respondent states the reasons for nonpayment of the brokage fee, planning and preparation fees as they are included in the $200.00 maximum fee allowable.

22I agree with the respondent that the August 22, 2023, July 10, 2023, and April 14, 2024, denial letters set out clear reasons for denying the hourly fees sought for a social worker providing the services, and similarly provide clear reasons for denying the additional fees sought. The letters offer a principled rationale for the denial, in language that is adequate to allow an unsophisticated person to understand the reason for the denial and to make an informed decision in response. Also, it states the right to appeal for the applicant if he disagrees with the insurer.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, no interest is awarded.

Award

24I find that that applicant has not established on a balance of probabilities that the respondent unreasonably withheld or delayed the benefit of payments.

25The applicant seeks 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.

26The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning it is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

27The applicant argues that he seeks an award as the respondent’s denials of the treatment plans are unreasonable, including because it “categorically denied the medical records of all of the applicant’s treating practitioners and assessors.” The applicant did not direct the Tribunal to evidence in support of his submissions.

28Further, the applicant did not direct the Tribunal to any evidence demonstrating that the respondent’s conduct in denying the treatment plans/portions of treatment plans is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

29For these reasons, I find that the applicant has not met his onus to prove, on a balance of probabilities, that the respondent unreasonably withheld or delayed the payment of benefits.

30Accordingly, I find that the applicant is not entitled to an award.

ORDER

31I find on the totality of the evidence, that:

i. The applicant is not entitled to the outstanding balance of any of the treatment plans in dispute.

ii. The applicant is not entitled to and interest or award.

iii. The application is dismissed.