Citation: Zuo v. Aviva Insurance Company of Canada, 2025 ONLAT 23-012263/AABS

Licence Appeal Tribunal File Number: 23-012263/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:

Ling Zuo

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Rasha El Sissi

APPEARANCES:

For the Applicant:

Ryan Olson, Paralegal

For the Respondent:

Aimee Draper, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ling Zuo, the applicant, was involved in an automobile accident on June 25, 2021, 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.

2The applicant is receiving treatment outside of the Minor Injury Guideline. The parties agree that the applicant suffered from psychological impairment as a result of the accident.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $2,105.38 ($3,701.88 less $1,596.50 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan / OCF-18 (“plan”) dated April 6, 2023?

ii. Is the applicant entitled to $2,200.00 for an Attendant Care Assessment, proposed by Somatic Assessments and Treatment Clinic in a plan dated February 24, 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

4The applicant is partially entitled to the unpaid balance of the cost of the plan for psychological services, in the amount of $698.25, plus interest.

5The applicant is entitled to $2,200.00, plus interest, for the plan for an attendant care assessment.

6No award is granted.

ANALYSIS

Plans in dispute

7To 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.

8The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

Plan for psychological services

Background

9In a letter dated April 13, 2023, the respondent approved 14, 60-minute sessions of therapy, at a rate of $99.75, plus $200.00 for preparation of the plan, for a total amount of $1,596.50. The rest of the proposed services were denied.

Calculation of overdue amount, in total

10For the reasons detailed below, I find that the applicant was entitled to 14, 90-minute sessions of therapy, at a rate of $99.75, plus $200.00 for preparation of the plan, for a total amount of $2,094.75.

11Therefore, I find that the applicant is entitled to $698.25, representing the difference between $2,094.75 and $1,596.50.

The proposed length of each session is reasonable and necessary.

12I find that the proposed 14, 90-minute sessions are reasonable and necessary.

13The plan proposes 14 treatment sessions of 90 minutes’ duration each. The respondent approved 14, 60-minute sessions.

14The applicant points to the psychological assessment report of Dr. Cook, dated February 1, 2023, which recommended 14, 90-minute sessions.

15The respondent submits that psychotherapy treatment sessions are customarily 60-minutes long. The respondent also submits that Dr. Cook may have recommended 90-minute sessions because he experienced problems communicating with the applicant during the assessment.

16I am persuaded by Dr. Cook’s report that 90-minute sessions are reasonable and necessary, because of the nature of the applicant’s impairment and the multiple elements of her treatment and its goals.

17Dr. Cook concludes that the applicant has three DSM-5 diagnoses, including severe anxiety and depression, clinically elevated post-traumatic symptoms and somatic symptom disorder related to physical pain. Dr. Cook recommends a treatment plan composed of four separate elements (discussed below) with five distinct long-term goals. I am persuaded that the longer sessions are needed to address these goals.

18I disagree with the respondent’s assertion that Dr. Cook had difficulties communicating with the applicant. Having read Dr. Cook’s report, I note he states that, “It was quite clear that [the applicant] was able to fully comprehend the proceedings of this assessment. She did appear to be an accurate historian and she did co-operate… in an effective manner.”

19Therefore, on a balance of probabilities, I find that 90-minute sessions are reasonable and necessary.

The proposed hourly rate for the psychotherapist’s services is not reasonable and necessary.

20I find that the hourly rate of $149.61 for the psychotherapist’s services is not reasonable and necessary.

21The plan proposes psychotherapy treatment sessions by Ms. Wai Yan Lui, registered psychotherapist, at the hourly rate of $149.61. The respondent approved an hourly rate of $99.75 for Ms. Wai Yan Lui.

22The applicant submits that Ms. Wai Yan Lui will be providing the same cognitive behavioural therapy and psychotherapy services as would be provided by a psychologist and that she should therefore be paid at the psychologist’s rate of $149.61.

23The respondent submits that the amounts payable by an insurer related to services not covered by the Professional Services Guideline (“PSG”) are to be determined by the parties involved. Psychotherapy is not covered by the PSG. The respondent submits that the rate of $149.61 under the PSG is for designated psychologists, not for psychotherapists who provide psychological treatment. Ms. Wai Yan Lui is not a registered psychologist.

24The applicant cites A.S. v. Aviva Insurance Company, 2020 CanLII 12787 (ON LAT) (“A.S.”) for the proposition that a psychotherapist performing the same services as a psychologist is entitled to the same rate as a psychologist. The applicant also cites Jones v. Intact Insurance Company, 2021 CanLII 131121 (ON LAT) for the proposition that the PSG does not state that a psychotherapist must be paid less than a psychologist.

25Having read A.S., I note it specifically relates to cognitive behavioural therapy and not to psychological services more broadly, as submitted by the applicant.

26I find that the applicant has not met her onus to show why Ms. Wai Yan Lui should be paid $149.61 per hour.

27Dr. Cook recommends a treatment plan composed of four separate elements, one of which is cognitive behavioural therapy to reduce depressive symptoms. The other three are: anxiety management techniques (e.g., progressive relaxation); exposure therapy, eye movement desensitization and reprocessing (EMDR); and pain management.

28The applicant did not point me to any evidence concerning these other treatment elements, such as the proportion of therapy time to be spent on them, the training required to conduct them, or whether they are services provided by psychologists. The applicant also did not provide information about Ms. Wai Lan Lui, such as her individual training, areas of expertise, her experience or usual rates. Therefore, I find that the applicant has not substantiated her request to pay Ms. Wai Lan Lui the same rate as a psychologist under the PSG.

29The applicant also submits that the supervision of Ms. Wai Lan Lui by Dr. Cook “ensured effective service, further justifying the proposed rate”. The respondent did not specifically address this submission. The applicant did not provide any particulars or evidence of how this supports that Ms. Wai Lan Lui is doing the same work as a psychologist. There could be other reasons for Dr. Cook’s supervision, such as re-evaluating the recommended duration of treatment, which he discusses in his report. Therefore, I am not persuaded by this submission.

30I find that the higher proposed hourly rate of $149.61 in the plan for psychotherapy services is not reasonable and necessary.

A progress report by the supervising psychologist is not reasonable and necessary.

31The applicant did not provide any submissions regarding the proposed progress report by Dr. Cook, for a fee of $360.00, which the respondent denied because it did not require a progress report at this time (according to its letter of April 14, 2023).

32Without any specific submissions on this portion of the plan, I find that the applicant has not met her onus to demonstrate that the service, including the fee, for the psychologist’s progress report is reasonable and necessary.

Plan for an attendant care assessment

33I find that the plan for an attendant care assessment is reasonable and necessary.

34The applicant submits that this plan is reasonable and necessary because she has ongoing physical / mobility difficulties, including back and shoulder pain and vertigo symptoms as a result of the accident. She submits these symptoms result in difficulties lifting items and intermittent falls.

35The applicant points to the clinical notes and records of her family doctor, Dr. Xuan Wang. On August 31, 2021, Dr. Wang recorded complaints of numbness in the applicant’s upper and lower body and her report of dropping objects intermittently. On April 22, 2022, Dr. Wang recorded the applicant’s complaint of recurrent vertigo since the accident and intermittent falls. He assessed “vertigo NYD” and prescribed a trial of “serc” medication for vertigo.

36The respondent submits that, at the time of the plan, the applicant was independent with her personal care tasks and the majority of her vocational and avocational activities of daily living. Therefore, the respondent submits that the plan is “not compensable”, because there would be no purpose for the assessment.

37The respondent points to the insurer’s examination (“IE”) report of Dr. Jamie Rusen, orthopaedic surgeon, dated March 15, 2023. Dr. Rusen concluded that there is no indication for an attendant care assessment in direct relation to the subject accident from an orthopaedic perspective. Dr. Rusen opined that there was no objective reason for the applicant to be considered as having an ongoing musculoskeletal impairment 18 months after the accident.

38I find Dr. Wang’s clinical notes and records to be persuasive insofar as he accepted the applicant’s complaint of accident-related vertigo symptoms and was treating them approximately 10 months before the plan was proposed.

39I find that Dr. Rusen’s IE report did not address vertigo, as there were no submissions or evidence in this regard.

40I also note that Dr. Rusen’s IE report notes that the applicant was experiencing difficulties with household tasks and to a more limited extent with personal care tasks, a month before the plan was proposed (i.e., January 24, 2023, date of the in-person examination).

41The respondent submits that the applicant specifically advised Dr. Rusen that she was independent with many housekeeping activities. Having read Dr. Rusen’s report, I find that Dr. Rusen noted that, prior to the accident, the applicant would regularly cook, mop, sweep, wash dishes, vacuum and do laundry. He noted that, at the time of the assessment, she reported that she did not participate in any housekeeping or home maintenance tasks.

42The respondent also submits that Dr. Rusen concluded that the applicant was independent with her personal care tasks and did not require the assistance of an aide or attendant and, as such, an attendant care assessment was not required. I cannot find this conclusion in the report. Rather I find that the applicant reported to Dr. Rusen that she is independent with respect to completing all personal care tasks and “on days when her pain becomes significantly worse, she does get help from her cousin or her husband when showering or putting on her shoes”.

43On the totality of the evidence, I find that prior to and shortly after the time the plan was proposed, there was an indication that would warrant an attendant care assessment in order to investigate whether such care was required.

44Therefore, on a balance of probabilities, I find that the applicant is entitled to $2,200.00 for an attendant care assessment.

Interest

45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies on the overdue benefits under the plan for psychological services ($698.25), and the plan for an attendant care assessment ($2,200.00).

Award

46The 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

47The applicant submits that the respondent ignored the medical records of the applicant’s treating practitioners and assessors and acted in a highhanded manner. The applicant did not provide particulars.

48The respondent submits that the plans / plan elements were properly denied based on the medical documentation on file, including Dr. Rusen’s IE report.

49While I may disagree with the respondent’s summary of Dr. Rusen’s IE report, that alone does not establish that the respondent’s conduct in adjudicating the claim was highhanded or that it ignored Dr. Wang’s clinical notes and records, as submitted by the applicant.

50Therefore, I find that the applicant has not met her onus to prove that the respondent’s conduct meets the threshold to justify an award.

ORDER

51For the above reasons, I find that:

i. The applicant is partially entitled to the unpaid balance of the cost of the plan for psychological services, in the amount of $698.25, plus interest.

ii. The applicant is entitled to $2,200.00, plus interest, for the plan for an attendant care assessment.

iii. No award is granted.