Citation: Adamusiak v. Aviva Insurance Canada, 2025 ONLAT 23-006449/AABS

Licence Appeal Tribunal File Number: 23-006449/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:

Julianna Adamusiak

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Laura Goulet

APPEARANCES:

For the Applicant:

Roger Foisy, Counsel

Rusald Laloshi, Paralegal

For the Respondent:

Aleah Thomas, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Julianna Adamusiak, the applicant, was involved in an automobile accident on September 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 $724.00 ($3,680.00 less $2,956.00) for psychological services proposed by Noha George in a treatment plan/OCF-18 (“plan”) denied on June 2, 2021?

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

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

RESULT

3The applicant is not entitled to the remainder of the treatment plan, an award, or interest.

ANALYSIS

4For the following reasons, I find that the applicant has not established on a balance of probabilities that the remaining $724.00 for psychological services is reasonable.

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.

6The plan in dispute was prepared by Noha George, psychotherapist and social worker, on May 17, 2021. The plan proposes sixteen sessions of “counseling, interpersonal relationships,” provider travel time to treatment, and “documentation, support activity.” The goals of the plan are to manage depressed mood, anxiety, and post trauma symptoms; to assist with coping mechanisms to address adjustment to post collision life/lifestyle and changes in roles/responsibilities; and to optimize overall rehabilitation and functioning and improve quality of life and community reintegration (with hope of re-integration back to her academic routine).

The applicant’s submissions

7The plan totalling $3,680.00 proposes that Ms. George be paid an hourly rate of $145.00. The respondent partially approved the plan up to $2,956.00, agreeing to pay an hourly rate of $99.75. In support of her position, the applicant makes several arguments that Ms. George should be paid at an hourly rate of $145.00. In summary, the applicant submits that:

i. The respondent has created an arbitrary hourly rate for a psychotherapist without any reference to legislation, regulations, caselaw, and without any consideration to evolving market trends or the therapist’s experience, training, or qualifications;

ii. Ms. George is a registered social worker and a member in good standing with the College of Social Workers and Social Service Workers of Ontario (“OCSWSSW”) and with the College of Registered Psychotherapists of Ontario (“CRPO”);

iii. On June 2, 2021, Ms. George emailed the adjuster on the file, providing a link to the Tribunal decision of J.V. v. Intact Insurance Company, 2019 CanLII 76995 (ON LAT) (“J.V.”), advising the adjuster that she has not raised her hourly fee in years, for the benefit of her clients. Ms. George spoke with the adjuster on the same day, explaining that the applicant is struggling, and that additional support is needed from the respondent. The adjuster sent an email to Ms. George dated June 3, 2021, advising that the respondent would pay $99.75 hourly for psychotherapy treatment provided by a psychotherapist, without further explanation;

iv. The Case Conference Report and Order (“CCRO”) dated January 25, 2024, contains an order that the respondent produce a copy of its adjusters’ log notes, any research completed by the respondent to determine the reasonable market rate for the proposed services and service provider, and a complete copy of the applicant’s accident benefits file, to be delivered by February 15, 2024. The respondent has not provided the productions to the applicant, despite the fact that the applicant sent the respondent a letter dated March 7, 2024 indicating that the productions were outstanding and overdue. The respondent has also not provided wholesome reasons and records pertaining to its decision-making and policies;

v. Due to the respondent’s unreasonable refusal to fund psychotherapy sessions at the hourly rate proposed by Ms. George, the applicant’s family has had to pay Ms. George’s hourly rate privately;

vi. Ms. George’s report dated June 20, 2022 confirms that she has 25 years of experience providing treatment, including a wide range of psychotherapeutic interventions such as Cognitive Behavioural Therapy (“CBT”), Dialectical Behavioural Therapy (“DBT”), and Mindfulness Based Stress Reduction (“MBSR”), among others. In the report, Ms. George indicates that treatment modalities used during sessions with the applicant from April 23, 2021 to the date of the report, have included CBT, DBT, and MBSR;

vii. Ms. George’s clinical notes and records (“CNRs”) of her sessions with the applicant from April 23, 2001 to August 15, 2022 reflect detailed notes that provide a lot of insight into the quality of therapeutic intervention offered. These CNRs were emailed to the respondent on February 13, 2023, and the respondent has not produced any evidence to suggest that it has read or considered them;

viii. The respondent has not sought updated notes or other information from Ms. George; it has never updated its decision to partially approve the plan in dispute; nor has it given any further particulars to justify the hourly rate it proposes to be reasonable;

ix. The hourly rate for psychologists and psychological associates under the Professional Services Guideline, Superintendent’s Guideline 03/14, September 2014 (“Guideline”) is $149.61 for claimants who are not catastrophically impaired, and the Guideline is silent on the rate for psychotherapists. The Guideline states that amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved. As such, the Tribunal retains the authority to decide the rate of reimbursement for services not covered by the Guideline;

x. The hourly rate proposed by Ms. George is reasonable, given her 25 years experience in social work and psychotherapy, and given that the methods of therapy she provided are similar to those of a psychologist.

xi. The respondent’s fixed hourly rate is unreasonable and unsupported by evidence relevant to this case, and that it has not provided any evidence of researching Ms. George’s qualifications, training, experience, or education, contrary to the order in the CCRO;

xii. The respondent’s templated response to Ms. George’s request for a reconsideration of its decision lacks rationale and violates s. 38(8) of the Schedule. Further, had the respondent provided reasons for its decision to Ms. George, they could have supplied evidence to assist in determining appropriate hourly rates; and

xiii. Given the Schedule’s focus on consumer protection, it would be unreasonable for the applicant to fully bear the cost of psychological services when the treatment costs are below the market average for a therapist/social worker.

8In their submissions, both parties refer to decisions of the Tribunal, which I have reviewed. Although I am not bound by other decisions of the Tribunal, I will refer to the decisions I found instructive more specifically below.

The respondent’s submissions

9In response to the applicant’s arguments set out above, the respondent submits that the applicant has not provided the respondent with Ms. George’s curriculum vitae (“CV”), or evidence to support that she has undergone the requisite training or obtained certification for CBT, DBT or MBSR. The respondent also submits that the plan does not indicate the nature of the treatment modalities to be used during the counseling sessions.

10The respondent submits that it approved the reasonable hourly rate of $99.75 based on Ms. George’s level of education, experience, and the capacity in which she submitted the proposed plan. The respondent submits that this hourly rate is in line with the Tribunal’s jurisprudence. The respondent further submits that Ms. George is not subject to the same rate as a psychologist because the treatment recommended in the disputed plan does not comprise, nor require, the services of a psychologist.

11In response to the applicant’s submission that it did not adduce evidence of independently researching Ms. George’s qualifications, training, experience, or education, the respondent submits that the applicant bears the onus of proving on a balance of probabilities that the proposed hourly rate is reasonable and necessary, and that she has not done so.

The applicant’s reply submissions

12In reply, the applicant makes the following submissions:

i. Ms. George’s CV and training certificates are not necessary to prove her qualifications to render the proposed therapy;

ii. The fact that Ms. George is a member in good standing with the OCSWSSW and the CRPO is sufficient evidence of her compliance with both colleges’ codes of ethics;

iii. These colleges are responsible for determining whether the care administered by a member is beyond their expertise and the Tribunal would make a significant error and may overstep the regulatory body’s role by attempting to assess the adequacy of the treatment provider’s qualifications;

iv. The Tribunal may lack the expertise to evaluate the contents of Ms. George’s CV without questioning her as to its contents;

v. The Schedule does not require a therapist’s CV to be introduced as evidence for treatment to remain reasonable;

vi. An obligation to list the method of treatment on the treatment plan would “pigeonhole” the therapist into only using one modality rather than relying on their experience to use them in an integrative approach;

vii. Providers are constrained by having to use of codes to enter treatment modalities in Part 12 of an OCF-18, such as “counseling, interpersonal relationships,” and that it is unrealistic to expect therapists to specify every treatment method as these may vary based on the patient’s evolving needs;

viii. The respondent could have sought details with respect to treatment when the plan was submitted or before the hearing, but chose to raise these concerns in its submissions, which is essentially “trial by ambush”;

ix. In Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 (“Tomec”), the Court of Appeal held that the Schedule is remedial and constitutes consumer protection legislation, and that its goal is to reduce the economic dislocation and hardship of motor vehicle accident victims. The applicant submits that in keeping with the reasoning in Tomec and the general principles of statutory interpretation, the interpretation of the term “reasonable” should favor the applicant; and

x. The hourly rate of $145.00 is less than the hourly rate of $149.61 for a psychologist as listed in the Guideline; it is reasonable compared to market rates available for the public and it is not excessive.

13The applicant requests an adverse inference be drawn against the respondent for withholding log notes and other productions, preventing clarification of any discussions that occurred.

The respondent complied with section 38(8) of the Schedule

14With respect to the applicant’s argument that the respondent’s email response to Ms. George on June 3, 2021 violates s. 38(8), I find that the partial denial of the plan was made in the respondent’s letter dated June 2, 2021, and not by email to Ms. George. Section 38(8) does not apply to correspondence between the respondent and the service provider. The applicant did not make specific submissions with respect to how the partial denial letter dated June 2, 2021 was not a proper denial pursuant to s. 38(8), other than to generally submit that the respondent did not give any particulars to justify the hourly rate it proposed to be reasonable.

15Upon a review of the plan, I note that Dr. Nilany Somasundaram, physician, was listed in Part 4. Ms. George identified herself as a social worker and a psychotherapist in Part 5. In the comments section, Ms. George indicated that Dr. Somasundaram is merely attesting to the necessity of the treatment outlined in the plan and assumes no responsibility for this plan apart from her support for its submission. The proposed treatment is listed as “counseling, interpersonal relationships.” The respondent’s partial denial letter indicates that Ms. George, psychotherapist, is listed as the applicant’s direct treating health provider, and that the respondent pays an hourly rate of $99.75 for the services of a regulated psychotherapist. The letter further states that different rates would apply if a different health care provider would be providing the services. The letter goes on to advise that if the health practitioner is requesting their services to be provided under the supervision of another health care practitioner, the respondent requests that these services be submitted on a new plan. The letter also advises the applicant of the procedures available at the Tribunal to dispute this decision.

16Given the information in the disputed plan, I find that the respondent’s partial denial provided clear reasons which would allow the applicant to make an informed decision in response. As such, I find that the respondent has complied with the requirements set out in s. 38(8) regarding its notice in partially denying the hourly rate in the plan.

The applicant is not entitled to the outstanding amount of the treatment plan

17Based on the evidence before me, for the following reasons I find that the hourly rate of $99.75 for Ms. George’s services is reasonable.

18I disagree with the applicant’s submission that Ms. George’s membership in good standing with the OCSWSSW and the CRPO is sufficient evidence of her qualifications. I also disagree with her submission that the Tribunal would make an error by attempting to assess the adequacy of the treatment provider’s qualifications. Further, I disagree with the applicant’s submission that the Tribunal may lack the expertise to evaluate the contents of Ms. George’s CV without questioning her as to its contents.

19The determination of these disputes is the responsibility of the Tribunal, and it routinely considers the CVs and other credentials of experts and lay witnesses. I find that to determine whether Ms. George should be paid at a higher rate based on her providing treatment in the areas of CBT, DBT and MBSR, it is necessary to assess her level of training and specialization in these areas. The applicant bears the onus to prove that the treatment provider has the necessary qualifications to warrant a higher hourly rate.

20I note that the disputed plan proposes “counseling, interpersonal relationships” and does not propose CBT, DBT, or MBSR. Although the applicant submits that the provider was unable to enter specific treatment modalities in Part 12 of the plan, I find that it was open to the provider to outline these forms of treatment in Part 9 of the plan or in the “additional comments” section. There is no indication in the plan that Ms. George would be providing specialized psychological treatment. Without this information, I find that the respondent’s partial approval at the hourly rate of $99.75 for treatment by a psychotherapist was reasonable.

21I agree that an adverse inference should be drawn against the respondent for not complying with the CCRO, however, I find that the result is the same in the end. The onus is on the applicant to establish on a balance of probabilities that the higher hourly rate sought is reasonable. The respondent made submissions with respect to why it believes the applicant did not meet that onus. The applicant had the opportunity to respond in reply.

22The applicant argues that Ms. George should be paid at the higher hourly rate of $145.00 because she is providing essentially the same services as a psychologist.

23In J.V., the Tribunal held that a registered psychotherapist doing the same work as a psychologist or psychological associate in providing CBT should be paid at the same rate. I find that the facts are distinguishable, however. In J.V., CBT was proposed within the treatment plan, and the Tribunal held that the treatment provider had specialized training in providing CBT. In this case, the plan proposes “counseling, interpersonal relationships,” and not CBT, DBT, and MBSR. Further, the applicant has not provided evidence that Ms. George has specialized training or accreditation in these areas.

24Other decisions of the Tribunal have followed the reasoning in J.V. (see Jindal v. Novex Insurance Company, 2023 CanLII 87429 (ON LAT), Kane v. Aviva Insurance Company, 2021 CanLII 55137, and Dhanji v. Aviva Insurance Company of Canada, 2021 CanLII 19424 (ON LAT).

25I agree with the reasoning in J.V. as well as the other decisions listed above, which find that an applicant must demonstrate that a therapist has specialized training in psychological treatment modalities to be paid at the rate of a psychologist or psychological associate. Although Ms. George indicates in her report that she has extensive experience in providing a wide range of psychotherapeutic interventions, she does not indicate that she has received specialized training with respect to these interventions.

26I have considered the applicant’s submissions that in keeping with the reasoning in Tomec and the general principles of statutory interpretation, the interpretation of a “reasonable fee” should favor the applicant. However, the onus of demonstrating that this fee is reasonable rests with the applicant. In the Tribunal decisions above, with which I agree, there must be evidence that a therapist has specialized psychological training for the therapist to be paid at a higher rate than the rate of a psychotherapist. In this case, the applicant has not met that onus.

27For these reasons, I find that the applicant has not met her burden of demonstrating that the hourly rate of $145.00 for Ms. George’s services is reasonable. The disputed plan does not propose CBT, DBT, or MBSR and there is no evidence that Ms. George has specialized training in these areas, even if she incorporated it into treatment. On the evidence, and in line with other decisions of the Tribunal, I find that an hourly rate of $99.75 is reasonable.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.

Award

29The 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. Since no benefits were unreasonably withheld, the applicant is not entitled to an award.

ORDER

30For the above reasons, I find:

i The applicant is not entitled to the remainder of the treatment plan, an award, or interest.

ii The application is dismissed.