Licence Appeal Tribunal File Number: 23-007547/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:
Yan Gao
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Yu Denise Jiang, Counsel
For the Respondent:
Geoffrey Keating, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Yan Gao, the applicant, was involved in an automobile accident on April 20, 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.
ISSUES
2The issues to be decided in the hearing are:
- Is the applicant entitled to the assessments proposed by Somatic Assessments and Treatment Clinic, as follows:
(i) $2,953.76 for psychological services, in a treatment plan dated May 25, 2021; and
(ii) The remaining amount of $1.950.26 for psychological services, in a treatment plan dated March 20, 2023?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent entitled to costs under Rule 19 of the Licence Appeal Tribunal Rules, 2023?
RESULT
3I find that:
The applicant is not entitled to $2,953.76 for psychological services, in a treatment plan dated May 25, 2021.
The applicant is not entitled to the remaining amount of $1.950.26 for psychological services, in a treatment plan dated March 20, 2023
The applicant is not entitled to an award.
The respondent is not entitled to costs.
ANALYSIS
4To 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.
5Section 38(8) of the Schedule states that within 10 business days after it receives a treatment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments, and examinations that it does not agree to pay for, and the “medical reasons and all of the other reasons” why the insurer does not consider them to be reasonable and necessary. The consequences of failing to comply with the notice requirements for each treatment plan are indicated in s. 38(11): the insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline (“MIG”) applies, and the insurer shall pay for the goods and services in the treatment plan starting on the 11th business day after the insurer received the application, and ending when proper notice is provided.
Is the applicant entitled to $2,953.76 for a treatment plan for psychological services dated May 25, 2021?
6I find that the applicant has not established that she is entitled to the treatment plan for psychological services dated May 25, 2021.
7The applicant submits that the respondent’s denial letter, dated June 28, 2021 is not compliant with s.38 of the Schedule, because the medical reasons provided by the applicant are not sufficient, and the respondent failed to consider the psychological assessment report of Dr. Sedigheh Naisi, dated June 28, 2021, in its denial. The respondent’s submissions are silent on this issue.
8Section 38(8) of the Schedule states that within 10 business days after it receives a treatment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments, and examinations that it does not agree to pay for, and the “medical reasons and all of the other reasons” why the insurer does not consider them to be reasonable and necessary. The consequences of failing to comply with the notice requirements for each treatment plan are indicated in s. 38(11): the insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline (“MIG”) applies, and the insurer shall pay for the goods and services in the treatment plan starting on the 11th business day after the insurer received the application, and ending when proper notice is provided.
9The June 28, 2021 denial letter stated:
The name and credentials of the service provider has not been provided. It is indicated that Sharlene McDowall, Psychologist, is to be the service provider, however, then there is a note indicating “Treatment will be provided by other providers under supervision”. If Sharlene McDowall is not going to be the service provider, she cannot be listed as such. Also, “PR” is used as the code for “Quantity/Measure” for documentation. We are unable to determine if the cost is reasonable and/or within the Fee Schedule. Furthermore, there is no evidence in your medical records of any ongoing psychological impairment so psychological treatment is not reasonable and necessary. An insurer’s examination of February 2020 found no need for psychological treatment and there is no indication in your medical records of any deterioration since then. Still further, there is no compelling evidence in your medical records that your injuries are not predominantly minor and as such, you are eligible for $3,500 in medical benefits of which $2,697.75 has already been paid. There is insufficient funding available to consider authorization of this OCF-18.
10I find that the June 28, 2021 denial letter is compliant with s. 38(8). It refers to a specific s.44 report which found that there “no need for psychological treatment and that there was no evidence of psychological impairments in the applicant’s medical records. While I find that Dr. Naisi’s psychological assessment report had been submitted to the respondent prior to the denial letter being issued, s.38 does not require the reasons to be correct. The notice also contains other reasons for the denial including the fact that the treatment plan identifies Dr. Sharleen McDowell as the treatment provider, while also indicating that the treatment would be provided by others “under supervision,” and that the applicant was within the MIG.
11As a result, I find that the denial letter is compliant with s. 38(8) and the applicant is not entitled to the treatment plan on this basis.
Reasonable and Necessary
12I find that the applicant has not established that the May 25, 2021 treatment plan is reasonable and necessary.
13The goals of the treatment plan, prepared by Dr. Sharleen McDowell, psychologist, and dated May 25, 2021 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 the activities of normal living. The treatment plan sets out 16 one-hour sessions of psychotherapy at a rate of $149.61 per hour, and a total of $560.00 in documentation, support activity for a total of $2,953.76.
14The applicant argues that the treatment plan is reasonable and necessary as the treatment plan is recommended by Dr. Naisi in her psychological assessment dated May 25, 2023.
15The respondent submits that the applicant has not established that the cost of the treatment plan is reasonable and necessary, as although Dr. McDowell is listed as the treatment provider, there is a notation in the additional comment section which states: “treatment will be provided by other providers under supervision.” The respondent argues that as the names and qualifications of the treatment providers are not listed on the treatment plan, that the applicant has not established that the rate of $149.61 is the appropriate rate for the physiotherapy sessions.
16I agree with the respondent. The applicant has not provided the names and qualifications of the “other providers under supervision” that the treatment plan proposes will actually provide the treatment. The applicant has the onus to prove that the overall cost of the treatment plan is reasonable and necessary, and absent any further evidence to support the rate of $149.61, there is insufficient basis to find that the cost of the treatment plan is reasonable and necessary.
17Therefore, I find that the applicant has not met her onus to prove that the treatment plan is reasonable and necessary.
18Accordingly, the applicant is not entitled to $2,953.76 for psychological services in the treatment plan dated May 25, 2021.
Is the applicant entitled to the remaining amount of $1,950.26 for a treatment plan for psychological services dated March 20, 2023?
19I find that the applicant has not established that she is entitled to the remaining amount of $1,950.26 for the treatment plan dated March 20, 2023.
20The goals of the treatment plan submitted by Paul Wong, social worker, of Somatic Assessments & Treatment Clinic Inc., 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 the activities of normal living.
21The treatment plan sets out the following:
$2,393.76 for 16 one-hour session of therapy, mental health and addictions at a rate of $149.61;
$598.40 for Brokerage, service at a rate of $149.61;
$598.40 for Planning, service at a rate of $149.61;
$360.00 for documentation, support activity for a progress report; and
$200 for documentation, support activity for claim form.
22The respondent partially approved the treatment plan in the amount of $2,200.00, including 16 therapy sessions and planning services at a lower rate of $100.00 per hour for a total of $2000.00. The Explanation of Benefits reveals that the respondent also approved $200.00 for the preparation of the treatment plan, but denied the additional documentation and brokerage service items.
23The applicant submits that the hourly rate for psychotherapy of $149.61 which is assigned to psychologists and psychological associates is appropriate for the social workers identified as treatment providers in the treatment plan, because social workers are qualified to provide psychotherapy. The respondent argues that the applicant has not provided any evidence that the treatment providers have 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 Faisal v CUMIS General Insurance Company, 2024 CanLII 51696 (ON LAT), which found that $100.00 per hour was a reasonable rate for social workers providing psychotherapy.
24The 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.
25I agree with the respondent. The treatment plan does not provide any detail to indicate that the identified social workers have 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.
26The applicant further submits that the amounts sought for other non-treatment items were denied arbitrarily by the respondent. In addition to the $598.00 for planning’ approved by the respondent, the applicant sought $598.00 for “communication with others,” which the applicant argued should be payable because there is an HCAI code for the item but did not provide any detail or explanation for what “communication with others” entails.
27The treatment plan also set out $360.00 for a progress report which the applicant argued was reasonable and necessary to assess and modify the applicant’s treatment in accordance with the applicant’s progress. The respondent argues that the treatment plan does not set out the content or purpose of the progress report, and the applicant has not submitted evidence from her treatment providers in support of her submissions.
28I agree with the respondent The treatment plan does not provide any detail or explanation with respect to the anticipated content of the progress report or what “communication with others” entails, to support a finding that these items are reasonable and necessary,
29Therefore, I find that the applicant has not met her onus to prove on a balance of probabilities that the costs for communication with others or a progress report are reasonable and necessary.
30Accordingly, the applicant is not entitled to the remaining amount of $1.950.26 for a treatment plan for psychological services dated March 20, 2023.
Award
31The 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 benefits were withheld or delayed, the applicant is not entitled to an award.
Costs
32The respondent did not make any submissions with respect to costs. The requestor bears the onus and therefore, the respondent is not entitled to costs under Rule 19.
ORDER
33I find that:
The applicant is not entitled to the treatment plan for psychological services, in a treatment plan dated May 25, 2021.
The applicant is not entitled to the remaining amount of $1.950.26 for psychological services, in a treatment plan dated March 20, 2023.
The applicant is not entitled to an award.
As no payments are owing, no interest is due.
The respondent is not entitled to costs.
Released: June 10, 2025
Kathleen Wells
Adjudicator