Citation: Guan v. Aviva General Insurance, 2025 ONLAT 23-011955/AABS

Licence Appeal Tribunal File Number: 23-011955/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:

Yu Guan

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Sarah Guergis

APPEARANCES:

For the Applicant:

Aylina Dhanji, Counsel

For the Respondent:

Anthony M Naples, Counsel

HEARD:

In Writing

OVERVIEW

1Yu Guan, the Applicant, was involved in an automobile accident on October 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 General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2The Applicant submits that the Respondent did not provide proper medical and all other reasons for the denial under s. 38(8). Further, that all of the partially denied amounts in dispute are reasonable and necessary.

3The Respondent submits that the partially denied amounts in dispute are not reasonable or necessary and that their onus under s.38(8) has been met.

ISSUES

4The issues in dispute are:

1. Is the Applicant entitled to physiotherapy services proposed by Total Recovery Rehabilitation Centre, as follows:

i. $1,468.08 ($4,195.12 less $2,727.04 approved) in a treatment plan/OCF-18 ("plan"), submitted October 6, 2022, and partially denied October 18, 2022;

ii. $543.44 ($3,525.12 less $3,069.56 approved) in a plan, submitted November 29, 2022, and partially denied December 14, 2022;

iii. $1,342.52 ($4,609.56 less $2,727.04 approved) in a plan, submitted March 7, 2023, and partially denied March 21, 2023;

iv. $544.44 ($4,069.56 less $3,525.12 approved) in a plan, submitted January 17, 2023, and partially denied January 31, 2023; and

v. $2,926.12 ($3,749.56 less $823.44 approved) in a plan, submitted October 17, 2023, and partially denied November 2, 2023?

2. Is the Applicant entitled to psychological services proposed by Somatic Assessments and Treatment Clinic, as follows:

i. $1,196.80 ($4,150.56 less $2,953.76 approved) in a plan, submitted November 8, 2022, and partially denied November 23, 2022;

ii. $1,357.28 ($2,355.28 less $998.00 approved) in a plan, submitted June 6, 2023, and partially denied June 8, 2023; and

iii. $1,357.28 ($2,355.28 less $998.00 approved) in a plan, submitted July 17, 2023, and partially denied July 19, 2023?

3. Is the Applicant entitled to $268.55 for expenses for visitors (Hong Lim Li), submitted on a claim form (OCF-6) dated November 7, 2022, and denied November 23, 2022?

4. Is the Respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?

5. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the Applicant is entitled to the outstanding partial amount for physiotherapy treatment/active therapy dated October 6th, 2022, in the amount of $798.00.

6I find the Applicant is entitled a remaining amount of treatment in the treatment plan dated June 6, 2023, for ongoing evaluation and modification of treatment in the amount of $299.20.

7I find the Applicant is entitled to a remaining amount of treatment in the treatment plan dated June 19, 2023, for ongoing evaluation and modification of treatment in the amount of $299.20.

8I find that the Applicant is not entitled to any of the other partial outstanding amounts in dispute.

9I find that interest applies on the treatment plans that have been deemed to be payable in accordance with s.51.

10I find that an award is not owing.

ANALYSIS

Physical Therapy

1. Is the Applicant entitled to $1,468.08 ($4,195.12 less $2,727.04 approved) in a treatment plan/OCF-18 ("plan"), submitted October 6, 2022, and partially denied October 18, 2022?

11I find the Applicant is entitled to the balance of this treatment plan.

12In the October 18th denial letter, the Respondent denied $798.08 for active therapy, $320.00 for travel assistance and $350.00 for an initial report. This amount equates to $1,468.08, the amount in dispute.

13In the denial letter, the Respondent did not provide adequate reasoning for its denial of active therapy.

14The Respondent wrote "Aviva will agree to pay for physiotherapy AND active therapy but only for up to 1 hour per session." The insurer did not provide medical reasons why the insurer considers the active therapy or proposed costs not to be reasonable and necessary, in accordance with s.38(8) which triggers s.38(11).

15Under s.38 (8) of the Schedule, the insurer must provide the insured person with notice of what goods, services, assessments, and examinations set out in the treatment plan it will approve or refuse to pay. The notice must include an explanation of the medical and all other reasons why the insurer considers any proposed goods, services, assessments and examinations, or the cost of them, not to be reasonable or necessary.

16I agree with the Applicant that the Respondent did not meet their onus for the denial letter under s.39(8).

17Therefore, s.38(11) is triggered, and the balance is payable.

2. Is the Applicant entitled to $543.44 ($3,525.12 less $3,069.56 approved) in a plan, submitted November 29, 2022, and partially denied December 14, 2022?

18I find that the Applicant is not entitled to the outstanding amount of this treatment plan.

19The outstanding amount is for travel assistance ($320.00) and a progress report ($224.44).

20The Applicant submits that travel and administrative costs were included in the treatment plans that were submitted to the Respondent and were approved. Therefore, the outstanding amount is reasonable and necessary.

21The Respondent submits that it agreed to pay $3,525.12 for: reassessment ($200.00); 16 one-hour sessions of physiotherapy ($1,596.00); an additional 16 half sessions of physiotherapy ($798.08); and 16 one-hour massage therapy sessions ($931.04). The Respondent submits that it did not agree to pay for travel assistance ($320.00) and a progress report ($224.44).

22The Respondent further submits that pursuant to the Transportation Expense Guideline ("TEG"), Aviva is not liable to pay for the first 50 kilometres of transportation (whether in the insured person's automobile) to and from treatment sessions, counselling sessions, training sessions, assessments, and examinations, unless the insured person sustained a catastrophic ("CAT") impairment as a result of the accident. The 50 kilometre "deductible" is only applicable once in any roundtrip and is calculated based on the most direct route and includes incurred parking fees.

23Further, that that additional expenses for "reports" and "brokerage fees" are not payable, and that these expenses are not reasonable and necessary. It further submits that the Professional Services Guideline ("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 Professional Services Guideline.

24I find that the Applicant did not direct me to evidence which establishes the Applicant's circumstances which would warrant the reasonableness and necessity of these two items.

25I agree with the Respondent. Pursuant to the TEG and the PSG, the claimed expenses for travel, brokerage fees, and administrative reports are not payable.

S.38(8)

26I reviewed the insurers notice dated December 14, 2022, and find it complies with s.38(8). The denial clearly outlines the reasons for the denial of the travel assistance and report.

27In the denial letter dated December 18, the Respondent stated that "reasonable and necessary transportation expenses may be payable for expenses you incur traveling to and from your treatment sessions however the first 50km of distance in any round trip to treatment is not payable. The rate of reimbursement is $0.40 per kilometre travelled. Transportation expenses are calculated based on the most direct route."

28Therefore, on a balance of probabilities, I find that the Applicant is not entitled to the outstanding amount of this treatment plan.

3. $1,342.52 ($4,609.56 less $2,727.04 approved) in a plan, submitted March 7, 2023, and partially denied March 21, 2023;

29I find that the Applicant is not entitled to the remaining amount of this treatment plan.

30While the amount in dispute is $1,342.52 as listed in the case conference report and order (CCRO), the Respondent indicates that the amount in dispute is $544.44 for travel assistance ($320.00) and a progress report ($244.44). The Applicant did not provide a breakdown of the amounts in dispute in their submissions. Therefore, I find that the Applicant has not met their onus with respect to the remaining $798.08 identified in the CCRO as being in dispute.

31The Applicant submits that travel and administrative costs were included in the treatment plans that were submitted to the Respondent and were approved. Therefore, the outstanding amount is reasonable and necessary. They further submit that the Respondent failed to meet the requirements set out under section 38(8) of the Schedule by not giving medical/relevant reasons for the denial.

32The Respondent submits that it agreed to pay $2,727.04 for: reassessment ($200); 16 one-hour sessions of physiotherapy ($1,596), and 16 one-hour massage therapy sessions ($931.04). It did not agree to pay for travel assistance ($320.00) and a progress report ($224.44). Therefore, the outstanding amount is not reasonable or necessary.

33The Respondent submits that pursuant to the TEG, Aviva is not liable to pay for the first 50 kilometres of transportation (whether in the insured person's automobile) to and from treatment sessions, counselling sessions, training sessions, assessments, and examinations, unless the insured person is determined to be CAT as a result of the accident. The 50 kilometre "deductible" is only applicable once in any roundtrip and is calculated based on the most direct route and includes incurred parking fees.

34The Respondent further submits that the PSG that 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 Professional Services Guideline. Therefore, additional expenses for "reports" and "brokerage fees" are not payable, and that these expenses are not reasonable and necessary.

35I agree with the Respondent. Pursuant to the TEG and the PSG, the claimed expenses for travel, brokerage fees, and administrative reports are not payable.

S.38(8)

36I reviewed the insurers notice dated March 21, 2023, and find it complies with s.38(8). Further, it clearly outlines the reasons for the denial of the travel assistance and report.

37Therefore, on a balance of probabilities, I find that that the outstanding amount of this treatment plan is not reasonable or necessary.

4. $544.44 ($4,069.56 less $3,525.12 approved) in a plan, submitted January 17, 2023, and partially denied January 31, 2023;

38I find that the Applicant is not entitled to the remaining amount of this treatment plan.

39The Applicant submits that travel and administrative costs were included in the treatment plans that were submitted to the Respondent and were approved. Therefore, the outstanding amount is reasonable and necessary. They further submit that the Respondent failed to meet the requirements set out under section 38(8) of the Schedule by not giving medical/relevant reasons for the denial.

40The Respondent submits that it agreed to pay $3,525.12 for: reassessment ($200.00); 16 one-hour sessions of physiotherapy ($1,596); an additional 16 half sessions of physiotherapy ($798.08); and 16 one-hour massage therapy sessions ($931.04). The Respondent did not agree to pay for travel assistance ($320.00) and a progress report ($224.44). Therefore, the outstanding amount is not reasonable or necessary.

41The Respondent submits that pursuant to the TEG, Aviva is not liable to pay for the first 50 kilometres of transportation (whether in the insured person's automobile) to and from treatment sessions, counselling sessions, training sessions, assessments and examinations, unless the insured person is CAT as a result of the accident. The 50 kilometre "deductible" is only applicable once in any roundtrip and is calculated based on the most direct route and includes incurred parking fees.

42The Respondent further submits that the PSG that 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 Professional Services Guideline. Therefore, additional expenses for "reports" and "brokerage fees" are not payable, and that these expenses are not reasonable and necessary.

43I agree with the Respondent. Pursuant to the TEG and the PSG, the claimed expenses for travel, brokerage fees, and administrative reports are not payable.

S.38(8)

44I reviewed the insurers notice dated January 31, 2023, and find it complies with s.38(8) because it clearly outlines the reasons for the denial of the travel assistance and report.

45Therefore, on a balance of probabilities, I find that the outstanding amounts for travel assistance and reports are not reasonable or necessary.

5. $2,926.12 ($3,749.56 less $823.44 approved) in a plan, submitted October 17, 2023, and partially denied November 2, 2023, and December 20, 2023?

46I find that the Applicant is not entitled to the outstanding amount of this treatment plan.

47The Applicant relies on an occupational therapy in-home report dated October 8, 2022, and March 15, 2023, conducted by Dr. Raymond Wong. Dr. Wong indicated several limitations and restrictions experienced by the Applicant, including their inability to return to pre-accident activities. Dr. Wong recommended attendant care regarding dressing, grooming, feeding, hygiene, bathing, and assistance with housekeeping tasks.

48The Respondent submits that on November 28, 2023, Orthopedic surgeon Dr. Yee, assessed the Applicant who reported feeling 75% better. Dr. Yee opined that it may take an additional 2 months for the Applicant to reach maximal medical improvement. He determined that an additional 4 sessions of physiotherapy would be reasonable and necessary to educate the Applicant about an independent home-based exercise program. The Respondent agreed to pay for 4 one-hour sessions of physiotherapy, the assessment fee and documentation fee.

49I find that I was not pointed to evidence to establish the reasonableness or necessity for the remaining unapproved physiotherapy services. Although the Applicant points to the report of Dr. Wong, I find they have not provided medical evidence to corroborate the reasonableness and necessity of the unapproved additional physiotherapy and massage therapy treatment. Further, although they reference the OCF-18s of Dr. Afifi, OCF-18s without corroborating medical reports are not sufficient evidence to establish the reasonableness or necessity of the outstanding amounts of this treatment plan.

S.38(8)

50The Applicant further submits that the Respondent failed to meet the requirements set out under section 38(8) of the Schedule by not giving medical/relevant reasons for the denial.

51The Respondent submits that on November 2nd it sent a letter to the Applicant that it was unable to determine if the Applicant was entitled to this treatment for massage and physiotherapy services and scheduled an insurer's examination. In this letter, the medical reasons for denial were that there is no noted improvement, and it requires an assessment to confirm if this form of treatment is required at the Applicant's stage of recovery.

52In the denial letter dated December 20th, 2023, the Respondent partially approved $823.44 of the $3,749.56 treatment plan. The medical reasons provided for the denial of the remaining amount were based on Dr. Yee's report and findings that an additional 4 sessions of treatment totaling $823.44, were recommended for treatment. The medical reasons provided were that these additional 4 sessions would educate the Applicant on progressive independent active home-based exercise following which he should be able to transition to a home-based program.

53I find the denial complies with s.38(8).

54Therefore, on a balance of probabilities, I find that the balance of this treatment plan is not reasonable or necessary.

Psychological Services

6. Is the Applicant entitled to, $1,196.80 ($4,150.56 less $2,953.76 approved), submitted November 8, 2022, and partially denied November 23, 2022?

55I find that the Applicant is not entitled to the remaining amount of this treatment plan.

56The outstanding amount of this treatment plan is for brokerage and planning services related to communication with others and ongoing evaluation and modification of treatment, as indicated in the November 23rd, 2022, denial letter.

57The Applicant relies on a psychological assessment report dated October 31, 2022, from Dr. Sedigheh Naisi, Psychologist. Dr. Naisi provided a diagnosis of Adjustment Disorder Mixed with Anxiety and Depressed Mood, Somatic Symptom Disorder, with Predominant Pain and Specific (in-vehicle) Phobia. The recommendation from this report included 16 sessions of 60-minute psychotherapy, and cognitive behavioural therapy.

58The Respondent submits that on November 23, 2022, it agreed to pay $2,953.76 for: 16 one-hour sessions of counselling ($149.61/hr x 16 sessions = $2,393.76); and documentation ($560). However, it did not agree to pay for: brokerage and planning services ($1,196.80) related to "communication with others" and "ongoing evaluation and modification of treatment." Therefore, the outstanding amount is not reasonable or necessary.

59While the Applicant points to the report of Dr. Naisi, I find that the Applicant did not provide submissions and did not direct me to evidence to establish the reasonableness and necessity of the unapproved portion of the treatment plan.

S.38(8)

60The Applicant further submits that the Respondent failed to meet the requirements set out under section 38(8) of the Schedule by not giving medical/relevant reasons for the denial.

61I find this denial notice complies with s.38(8). The reasons for the denial of the communication with others and ongoing evaluation and modification of treatment are clearly outlined.

62Therefore, I find on a balance of probabilities that the outstanding amount is not reasonable and necessary.

7. $1,357.28 ($2,355.28 less $998.00 approved) in a plan, submitted June 6, 2023, partially denied June 8, 2023?

63I find the Applicant is not entitled to the outstanding amount of this treatment plan for a progress report or communication with others/administrative fees.

64I find the Applicant is entitled to the higher hourly rate for the psychotherapist.

65The Respondent submits that it agreed to pay $998 for: all 8 proposed counselling sessions with psychotherapist Wendy Lee ($99.75/hr x 8 sessions = $998); and completion of the OCF-18 ($200). The Respondent submits that it did not agree to pay for: the higher hourly rate proposed; communication with others ($299.20) or a progress report ($360).

Hourly Rate

66In its June 8th, 2023, notice of denial, the Respondent noted that the service provider listed on the treatment plan is a psychotherapist, and the proposed hourly rate for this service is $149.61/hr. Pursuant to the PSG, $149.61 is the hourly rate payable for services provided by either a psychologist or a psychological associate only. Since the PSG does not list an hourly rate for psychotherapists, the Respondent agreed to pay $99.75/hr for services provided by Wendy Lee.

67The sessions were provided by Ms. Wendy Lee, M.A., RP, working under the supervision of Dr. Sedigheh Naisi, C. Psych.

68I find that the hourly rates should be the same for the same services provided. I find that the Applicant's psychotherapist, should be paid at the rate of $149.61/hr for the work completed.

69Therefore, I find that the hourly rate of 149.61 is reasonable and necessary.

S.38(8)

70The Applicant further submits that the Respondent failed to meet the requirements set out under section 38(8) of the Schedule by not giving medical/relevant reasons for the denial.

71I find the Respondent was compliant with s. 38(8).

Progress Report

72Regarding the progress report in the amount of $360.00, for the reasons stated above, I do not find this reasonable or necessary.

73I find the Applicant is entitled to the portion of the balance of this treatment plan which covers the psychotherapist's higher hourly rate.

74Therefore, on a balance of probabilities a portion of the balance of this treatment plan is payable.

8. $1,357.28 ($2,355.28 less $998.00 approved) in a plan, submitted July 17, 2023, and partially denied July 19, 2023?

75I find that the Applicant is entitled to the remaining amount of this treatment plan for ongoing evaluation and modification of treatment in the amount of 299.20.

76I find the Applicant is not entitled to the outstanding amount of this treatment plan for communication with others in the amount of 299.20.

77The Applicant again relies on a psychological assessment report dated October 31, 2022 from Dr. Sedigheh Naisi, Psychologist. Dr. Naisi provided a diagnosis of Adjustment Disorder Mixed with Anxiety and Depressed Mood, Somatic Symptom Disorder, with Predominant Pain and Specific (in-vehicle) Phobia. The recommendation from this report included 16 sessions of 60-minute psychotherapy, cognitive behavioural therapy.

78The Respondent submits that it agreed to pay $998 for all 8 proposed counselling sessions with psychotherapist Wendy Lee ($99.75/hr x 8 sessions = $998); and completion of the OCF-18 ($200). However, it submits that it did not agree to pay for the higher hourly rate proposed; communication with others ($299.20) and progress report ($360). There is also a denied amount of $299.20 for ongoing evaluation and modification of treatment. Therefore, the outstanding amount is not reasonable or necessary.

Hourly Rate

79The Respondent further submits that as per the Professional Services Guideline, $149.61 is the hourly rate payable for service provided by either a psychologist or a Psychological Associate only. Since the Professional Services Guideline does not list an hourly rate for Psychotherapists, it agrees to pay $99.75 per hour for services provided by Wendy Lee.

80The sessions were provided by Ms. Wendy Lee, M.A., RP, working under the supervision of Dr. Sedigheh Naisi, C. Psych.

81Wendy Lee is a registered psychotherapist, was working under the supervision of Dr. Naisi, a psychologist.

82I find that the hourly rates should be the same for the same services provided. I find that the Applicant's psychotherapist, should be paid at the rate of $149.61 per hour for the work completed.

83Therefore, I find that the hourly rate of 149.61 is reasonable and necessary in the amount of $299.20.

Progress Report

84Regarding the progress report in the amount of $360, as stated above, I do not find this reasonable or necessary. Therefore, on a balance of probabilities this is not payable.

OCF-6

9. Is the Applicant entitled to $268.55 for expenses for visitors (Hong Lim Li), submitted on a claim form (OCF-6) dated November 7, 2022, and denied November 23, 2022?

85I find that the Applicant is not entitled to this OCF-6.

86The outstanding amount of this OCF-6 is for transportation fees.

87The Applicant submits that the Schedule is consumer protection legislation. As such, the provisions of the Schedule should be liberally construed in favour of the Insured. An Applicant and an insurer are in a good faith relationship. The Insurer has a duty to treat an Applicant fairly and reasonably.

88The Applicant relies on Lafrance v. The Co-operators General Insurance Company, 2024 ONLAT 21-010547/AABS which concluded that visitor expenses with receipts are reasonable and necessary expenses.

89The Respondent submits that it does not agree to pay for $268.55 worth of charges for Uber Eats ($40.10); various Uber rides ($228.45). Therefore, the outstanding amount of this plan is not reasonable or necessary.

90The Respondent relies on the s 3(1)(b) of the Schedule and the PSG, as noted above.

91I agree with the Respondent that, the Applicant has not been determined to be CAT and travel and visitor expenses are not payable by the insurer if/when the Applicant is not deemed CAT, pursuant to the Schedule.

S.38(8)

92The Applicant further submit that the Respondent failed to meet the requirements set out under section 38(8) of the Schedule by not giving medical/relevant reasons for the denial.

93The Respondent submits that their denial meets the requirements set out in S 38(8) and was submitted on time.

94I find the Respondent met their onus under s.38(8).

95Therefore, on a balance of probabilities I find that the OCF-6 expenses are not reasonable and necessary.

Interest

96In accordance with s. 51, interest applies on the treatment plans that I have found to be reasonable and necessary.

Award

97The Applicant submits that they are entitled to a special award on several grounds, First, that the Respondent unreasonably withheld or denied payments, second that the Respondent ignored the Applicant is vulnerable as a result of his accident-related injuries.

98The Respondent submits that, it did not unreasonably withhold benefits, nor are the treatment plan amounts in dispute reasonable or necessary, and therefore no interest or award is owing.

99As the amounts in dispute are partial, and the treatment was partially approved, I do not find that the Applicant has furnished sufficient evidence to establish that the treatment was unreasonably withheld or denied.

100Therefore, on a balance of probabilities, I find that an award is not payable.

ORDER

101The Applicant is entitled to the outstanding partial amount for physiotherapy treatment/active therapy dated October 6th, 2022, in the amount of $798.00.

102The Applicant is entitled a remaining amount of treatment in the treatment plan dated June 6, 2023, for ongoing evaluation and modification of treatment in the amount of $299.20.

103The Applicant is entitled to a remaining amount of treatment in the treatment plan dated June 19, 2023, for ongoing evaluation and modification of treatment in the amount of $299.20.

104The Applicant is not entitled to any of the other partial outstanding amounts in dispute.

105Interest applies on the treatment plans that have been deemed to be payable in accordance with s.51.

106An award is not owing.