Citation: Tsetan v. Intact Insurance Company, 2025 ONLAT 23-008078/AABS - A

Licence Appeal Tribunal File Number: 23-008078/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:

Lobsang Tsetan

Applicant

and

Intact Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Rajiv Kapoor, Paralegal

For the Respondent: Carman Lee, Counsel

HEARD: By way of written submissions

OVERVIEW

1Lobsang Tsetan, the applicant, was involved in an automobile accident on May 15, 2018, 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, Intact Insurance Company, 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 $1,003.52 ($2,354.13 less $1,352.61 approved) for psychological services, proposed by Injury Management and Medical Assessment in a treatment plan/OCF-18 (“plan”) dated June 9, 2021?

ii. Is the applicant entitled to $5,511.19 ($7,884.00 less $2,372.81 approved) for catastrophic impairment assessment, proposed by HAL Disability Management Inc. in a plan dated November 3, 2022?

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

3I find that the applicant has not proven, on a balance of probabilities, that he is entitled to the outstanding portion of the psychological services treatment plan.

4I find that the applicant has not proven, on a balance of probabilities, that he is entitled to the outstanding portion of the catastrophic impairment assessment treatment plan.

5As there are not overdue benefit payments, no interest is owing.

6The applicant has not proven on a balance of probabilities that he is entitled to an award.

ANALYSIS

Psychological services treatment plan

7I find that the applicant has not proven, on a balance of probabilities, that he is entitled to the outstanding amount in the psychological services treatment plan.

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 respondent partially approved the treatment plan of $2,354.13 up to $1,352.61. The remaining balance of $1,003.52 is based on the approval of an hourly rate of $99.75 instead of the requested $149.61 per hour, the denial of additional documentation, and time to complete documentation.

10The applicant submits that the respondent incorrectly determined the maximum hourly rate of psychotherapist Mr. Walsh. The applicant submits that both psychologists and registered psychotherapists provide the same psychotherapeutic treatment, and, if they are providing the same treatment, their hourly rates should be the same. The applicant submitted serval Tribunal decisions where the Tribunal found in favour of paying a psychotherapist the same as a psychologist.

11In this instance, I do not agree with the applicant. While the sited cases do show occasional instances where the Tribunal did find in favour of the higher rate for psychotherapist, each case is considered and determined on its own facts. In this specific case with Mr. Walsh has already been reviewed. In Tsetan v Intact Insurance Company, 2023 CanLII 116467 (ON LAT), adjudicator Setton, found that the qualifications of Mr. Walsh did not warrant the higher rate in providing services to the applicant. The Guideline states clearly that services provided by health care professionals/providers, unregulated providers and other occupations not listed in the Guideline are not covered by the Guideline.

12The Guideline further states that automobile insurers are not liable to pay for expenses related to professional services that exceed the maximum hourly rates. However, it also states that they are not prohibited from paying above the maximum amount or hourly rate, thus allowing for some flexibility, which the respondent has reasonably explained, indicating that they chose in this instance to not pay the lowest rate possible of $58.19, but to extend Mr. Walsh the rate used by similar types of professionals like occupational therapists, and physiotherapists.

13The respondent did not approve a line item for “session notes” on the basis that such administrative work is not covered by the Guideline.

14The applicant argues this “session notes” were reasonable and necessary and cites Pauvif v Aviva General Insurance, 2020 CanLII 122614 (ON LAT). The applicant argues, that similar to Pauvif, where the Tribunal found that the applicant was entitled to planning services and preparation services, that they are also entitled. In this instance, I do not agree with the conclusion in that case. All cases are decided upon the specific evidence presented in each case. I have not been directed to why, absent of the quoted case, the applicant is entitled to this charge. The applicant has not made a direct argument as to the reasonableness or necessity of these “session notes” in this instance beyond the previous cited decision.

15The respondent did not approve the full amount for the document preparation fee. It instead allowed for one hour of preparation time to complete the form using the reduced hourly rate for Mr. Walsh. In its denial, the respondent requested a reason as to why the additional time beyond one hour was needed to complete the form. The applicant argues that the respondent was aware of the applicant’s hearing difficulties and that he may require additional time to complete the form. The applicant has not proven that the additional time was reasonable and necessary in this instance. In their partial approval, the responded provided clear reasoning for their decision and invited the applicant to provide reasons why the additional time was necessary. I have not been directed to the applicant supplying this additional information to the respondent for them to reconsider their partial denial.

16I find that the applicant has not shown he is entitled to the outstanding balance for the psychological services treatment plan. The applicant has not proven, on a balance of probabilities, that the hourly rate of $149.61 should be applied to Mr. Walsh, nor why the outstanding documentation costs were reasonable and necessary.

Catastrophic impairment assessment

17I find that the applicant has not proven, on a balance of probabilities, that he is entitled to the outstanding amount in the catastrophic impairment assessment treatment plan.

18The respondent partially approved the treatment plan of $7,884.00 up to $2,372.81. The unapproved balance of $5,511.19 is based on the approval of an hourly rate of $99.75 instead of $149.61 for documentation, the s. 25(5)(a) limit on fees, and a duplication of services. The respondent also denied the administrative fees for file review.

19As provided in s. 25(5)(a) of the Schedule, an insurer may agree to pay fees of up to $2,000.00 for any one assessment or examination proposed in an OCF-18.

20The applicant argues s. 45 of the Schedule requires an insurer to pay reasonable fees for preparing an application for the determination of catastrophic impairment.

21The respondent argues that in their partial approval, they are following s. 25(5) of the Schedule which places a $2,000.00 cap on any singular examination.

22It is well settled by the Tribunal that catastrophic assessments are not subject to any cap on cost if they are shown to be reasonable and necessary.

23While I agree that there in no cap on the costs of a catastrophic assessment, the applicant is still required to show that these expenses are reasonable and necessary. In review of the applicant’s submitted evidence, there are two other Catastrophic assessment treatment plans. In neither of these treatment plans do any one assessment exceed the $2,000.00 cap per assessment. The applicant has made no direct submission to argue why of the ear, nose and throat assessment would cost $6.000.00. I am not provided any evidence or rational to base this assessment’s cost.

24The applicant has not proven on a balance of probabilities, that he is entitled to the outstanding balance in the catastrophic impairment assessment treatment plan.

Section 38 and the psychological services treatment plan denial

25I find that the applicant has not proven, on a balance of probabilities, that the respondent did not conform with the s. 38 requirements in their denial of the psychological services treatment plan.

26Section 38(8) of the Schedule states:

Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for any the insurer does not agree to pay for and, the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

27The applicant argues that the respondent provided little to no medical or other reasons as to why they denied the full amount of the submitted treatment plan. The respondent argues that they conformed to the requirements of s. 38(8).

28The denial provided by the respondent identified the goods and services in the treatment plan, as well as what they agreed to pay for from each element of the plan. The respondent also provided a line-by-line commentary as to why they did not agree to pay for the full amount requested in the treatment plan. The reasons included reference to the Guideline for a lower hourly rate and administrative costs and for time to completion of a required form.

29I disagree with the applicant that the respondent failed to comply with the requirements of s. 38(8). In my review of their denial, it adhered to the identified elements of s. 38(8).

30I find that the applicant has not proven, on a balance of probabilities, that the respondent failed to comply with the s. 38(8) requirements.

Section 38 and the catastrophic impairment assessment services treatment plan denial

31I find that the applicant has not proven, on a balance of probabilities, that the respondent did not conform with the s. 38 requirements in their denial of the catastrophic impairment assessment treatment plan.

32Section 38(8) of the Schedule states:

Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for any the insurer does not agree to pay for and, the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

33The applicant argues that the respondent erred in not clearly providing in their explanation of benefits the amount that was approved, and only provided the amount that was denied.

34The respondent argues that they conformed to the requirements of s. 38(8).

35In review of the explanation of benefit, the respondent responded in time as required by s. 38(8). I agree with the applicant, there is not a total of what the respondent has agreed to pay for at the top of the examination of benefits. I disagree with the applicant that they were not provided with that information. In review of the explanation of benefits, I find that the respondent did provide a clear line by line explanation of what amounts they were approving, and provided a total of what was denied.

36I find that the applicant has not proven on a balance of probabilities that the respondent failed to comply with the s. 38(8) requirements.

Interest

37As there are not overdue benefit payments, not interest is owing.

Award

38The 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 there are not benefit payments that have been unreasonably withheld or delayed, no award is owing.

ORDER

39I find that:

i. The applicant is not entitled to the outstanding amount for the psychological services treatment plan.

ii. The applicant is entitled not entitled to the outstanding amount for the catastrophic impairment assessment treatment plan.

iii. As there are not overdue benefit payments, not interest is owing..

iv. As no benefit payments have been unreasonably withheld or delayed, no award is due.