Licence Appeal Tribunal File Number: 23-008450/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:
Lisa Holland
APPEARANCES:
For the Applicant:
Anil Hampole, Counsel
For the Respondent:
Catherine H Zingg, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Ming Tak Yau, the applicant, was involved in an automobile accident on July 19, 2020, 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 Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $1,606.60 ($2,804.10 less $1,197.50 approved) for psychological services, proposed by Somatic Assessments & Treatment Clinic (“SOMA”) in a treatment plan/OCF-18 (“plan”) dated September 15, 2022?
ii. Is the applicant entitled to $2,804.10 for psychological services, proposed by SOMA in a plan dated March 16, 2023?
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
3The applicant is not entitled to the disputed treatment plans, interest, or an award.
ANALYSIS
Issue #1- Plan dated September 15, 2022 for the outstanding amount of $1,606.60
4I find that the applicant has not established that the outstanding balance of the plan dated September 15, 2022 is payable.
5To receive payment for a treatment plan under sections 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. 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 same are reasonable.
6The September 15, 2022 plan sought 10 one-hour sessions of mental health therapy, with documentation support activity, planning and brokerage services in the amount of $2,804.10. The respondent partially approved the treatment plan in the amount of $1,197.50 for 10 one-hour sessions at a rate of $99.75, plus the costs of completion of the OCF-18 for $200.00. The outstanding amount of $1,606.60 was comprised of:
i. Mental health therapy – 10 one-hour sessions at a rate of $149.61 per hour less $99.75 per hour approved, totaling $490.86;
ii. Brokerage services - 2.5 hours at a rate of $149.61 per hour, totalling $374.00;
iii. Planning services - 2.5 hours at a rate of $149.61 per hour, totaling $374.00, and;
iv. Documentation support activity - one hour at a rate of $360.00 per hour.
a) Provider rate
7I find that the applicant is not entitled to the difference between $149.60 per hour less $99.75 per hour, or $490.86, for 10 one-hour sessions by Wai Yan Lui, registered psychotherapist.
8Under s.25(3) of the Schedule, an insurer is not liable to pay for expenses for professional services that exceed the Professional Services Guideline, Superintendent’s Guideline No.03/14 (“Guideline”).
9The applicant submits that a psychologist’s rate of $149.61 for Wai Yan Lui is more appropriate as psychotherapists and psychologists provide similar services. The applicant further submits that the respondent incorrectly determined the maximum hourly rate of Wai Yun Lui because Dr. Sedigheh Naisi, a psychologist, is the supervisor of Wai Yun Lui, which is not permitted since they are not in the same field of practice. However, the applicant does not explain how the services of Wai Yan Lui are the same or similar to those of a psychologist.
10The respondent submits that there is no maximum hourly rate provided in the Guideline for a psychotherapist or registered psychotherapist, and the respondent paid a fair rate of $99.75 per hour for Wai Yun Lui, as a registered psychotherapist. The respondent further submits that the applicant bears the onus to establish that the proposed rate is appropriate on the basis of the provider’s education, training, and experience.
11I agree with the respondent. The applicant has not established how the hourly rate of the treatment provider, Wai Yun Lui, as a registered psychotherapist is equivalent to a psychologist, and therefore, payable at the maximum rate for psychologists of $149.61 per hour.
12I find that the applicant has not demonstrated on a balance of probabilities, that he is entitled to the unapproved portion of $490.86 of the September 15, 2022 plan for 10 one-hour sessions at a rate of $149.61.
b) Brokerage services
13I find that the applicant has not made any submissions to establish that the outstanding amount for brokerage services of $374.00 is reasonable and necessary.
14I agree with the respondent that the applicant has not provided an explanation for the additional brokerage services beyond the amounts which have already been paid. There is no explanation to distinguish between the additional time of six hours for brokerage services where the respondent had already approved seven and a half hours of documentation support activities for $1,117.50.
15Therefore, I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to the unapproved portion of $374.00 for brokerage services of the September 15, 2022 plan.
c) Planning services
16I find that the applicant has not made any submissions to establish that the outstanding amount for planning services of $374.00 is reasonable and necessary.
17I agree with the respondent that the applicant has not provided an explanation for the additional planning services beyond the amounts which have already been paid.
18Therefore, I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to the unapproved portion of $374.00 for planning services of the September 15, 2022 plan.
d) Documentation support activity
19I find that the applicant has not made any submissions to establish that the outstanding amount for documentation support activity of $360.00 is reasonable and necessary.
20I agree with the respondent that the applicant has not provided an explanation for the additional one hour of documentation support activity beyond the amounts which have already been paid.
21Therefore, I find that the applicant has not established on a balance of probabilities that he is entitled to the unapproved portion of $360.00 for documentation support activity of the September 15, 2022 plan.
22In sum, for the reasons stated above, I find that the applicant has not established on a balance of probabilities that the balance of the September 15, 2022 plan of $1,606.60 is reasonable and necessary and, therefore, the applicant is not entitled to the remaining amount of this plan.
Issue #2- The applicant is not entitled to the proposed plan for psychological services dated March 16, 2023
23I find that the applicant is not entitled to the plan dated March 16, 2023 for psychological services, because the medical evidence suggests that he has reached maximum medical improvement, and he has no interest in receiving psychological services.
24The plan dated March 16, 2023 for psychological services was completed by Raymond Wong, occupational therapist at SOMA, for mental health therapy, brokerage services, planning services and documentation support activity with Ling Tse, social worker, in the amount of $2,804.10. The goals of the plan are to reduce negative thought patterns and return the applicant to his activities of daily living.
25The applicant relies on the Insurer Examination (“IE”) report dated June 20, 2023 by Dr. Arpita Biswas, psychologist. I find, however, that this report indicates that the applicant has no interest in receiving further psychotherapy, since he didn’t find the completed sessions beneficial. I find that Dr. Biswas opines that the applicant’s current symptoms of anxiety and depressed mood are related to his inability to find full-time employment. I further find that in concluding that the proposed plan for psychological services is not reasonable and necessary, Dr. Biswas explains that the applicant works as a part-time delivery driver, and he has reached maximum medical improvement from a psychological perspective.
26The respondent submits that although the report of Dr. Biswas does indicate the applicant has symptoms of depressed and anxious mood, it is related to his inability to obtain full-time hours at work.
27I find that on a balance of probabilities, the applicant has not demonstrated that the proposed plan dated March 16, 2023 for psychological services is reasonable and necessary.
Interest
28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest does not apply.
Award
29The applicant sought an award under s. 10 of Reg. 664.
30Under 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 benefits are payable, there is no basis upon which to order an award under s.10 of Reg. 664.
ORDER
31For the reasons set out above, I find that:
i. The applicant is not entitled to the treatment plans in dispute.
ii. The applicant is not entitled to interest or an award.
iii. The application is dismissed.
Released: March 20, 2025
Lisa Holland
Adjudicator