Citation: Wang v. Aviva Insurance Company of Canada, 2025 ONLAT 23-013211/AABS

Licence Appeal Tribunal File Number: 23-013211/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:

Fu Lin Wang

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Aric Bhargava

APPEARANCES:

For the Applicant:

Anil Hampole, Counsel

Submissions by:

Natalie Spinelli, Paralegal

HEARD:

By way of written submissions

OVERVIEW

1Fu Lin Wang, the applicant, was involved in an automobile accident on September 9, 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.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $5,023.90 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) dated September 6, 2023?

ii. Is the applicant entitled to $1,041.88 ($3,701.88 less $2,660.00 approved) for psychological services, proposed by Somatic Assessments & Treatment Clinic in a plan dated February 14, 2022?

iii. Is the applicant entitled to $1,041.88 ($3,701.88 less $2,660.00 approved) for psychological services, proposed by Somatic Assessments & Treatment Clinic in a plan dated August 4, 2023?

iv. Is the applicant entitled to $3,701.88 for psychological services, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated November 11, 2022?

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

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

RESULT

3The applicant is not entitled to the treatment plan for $5,023.90 for chiropractic services.

4The applicant is not entitled to the unapproved services in the treatment plan for $1,041.88 for psychological services.

5The applicant is not entitled to the unapproved services in the treatment plan for $1,041.88 for psychological services.

6The applicant is not entitled to the treatment plan for $3,701.88 for psychological services.

7The applicant is not entitled to interest on overdue payments.

8The respondent is not liable to pay an award.

ANALYSIS

The applicant is not entitled to the treatment plan in the amount of $5,023.90 for chiropractic services

9I find on a balance of probabilities the applicant has not demonstrated the chiropractic services treatment plan is reasonable and necessary. The applicant is not entitled to the disputed treatment plan.

10To receive payment for an OCF-18 under sections 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.

11The chiropractic services treatment plan dated September 6, 2023 was prepared by Dr. Georgia Palantzas, chiropractor, with Total Recovery Rehab Centre. The plan intends to address the applicant’s injuries including fracture of rib, and other injuries. The provider proposed 66 sessions including 16 sessions of chiropractic treatment, 16 half sessions of exercise, 16 half sessions of acupuncture, and 16 counts of travel assistance, a reassessment and a progress report over an 8-week period. The goals for this plan are pain reduction, increase in strength, increased range of motion, to minimize compensatory strain, to return to activities of normal living, return to pre-accident work activities, and to promote soft tissue healing. The provider notes progress will be evaluated through questionnaire and disability index, pain scale, range of motion, orthopaedic and neurological testing.

12The applicant submits the treatment plan is reasonable and necessary due to his accident-related impairments and relies on the clinical notes and records (“CNRs”) of Dr. Tharwat Bishay, physician, X-ray records, and the OCF-18 submitted by Dr. Palantzas.

13The respondent states the treatment plan is not reasonable and necessary and relies on the family doctor’s CNRs, the s. 44 insurer’s examination (IE) for an orthopaedic assessment prepared by Dr. Jaqueline Auguste, orthopaedic surgeon, dated October 27, 2022. The respondent argues the applicant has not provided contemporaneous medical documentation recommending ongoing chiropractic treatment in relation to the accident.

14I find the applicant has not satisfied his onus on a balance of probabilities that the proposed services are reasonable and necessary. In reaching this conclusion, I note that on September 13, 2021, Dr. Bishay notes the applicant has “no serious injuries … now has pain neck right upper back pain” and “is in no pain or distress”. The family doctor did not recommend chiropractic treatment during this visit or any of the subsequent visits. On September 20, 2021 the doctor notes “refer to physio, massage”.

15There is no recommendation or referral in the family physician’s CNRs for chiropractic treatment. The family doctor CNRs show the last visit was in November 2022 and there was no mention of the accident or of the injuries noted in the proposed treatment plan.

16I find on a balance of probabilities the treatment plan in dispute for chiropractic services is not reasonable or necessary.

The applicant is not entitled to the unapproved amount of $1,041.88 ($3,701.88 less $2,260.00 approved) for a treatment plan for psychological services

17I find on a balance of probabilities the applicant has not demonstrated the unapproved amount in the psychological services treatment plan is reasonable and necessary. The applicant is not entitled to the unapproved amount of the disputed treatment plan.

18The psychological services treatment plan proposed by Dr. Shirley McDowall, psychologist, dated February 14, 2022 is for $3,701.88, with $2,660.00 approved by the respondent. The plan intends to address specific phobias and depressive episodes. The goal of the plan is to reduce negative thought patterns and return to activities of normal living. The treatment plan is evaluated through interactions with friends and family, quality of sleep, and comfort with traveling. The treatment plan includes 14 sessions of therapy, documentation over a period of 14 weeks. The unapproved amount of $1,041.88 in the plan was for the disputed hourly rates for a social worker providing therapy sessions. The treatment plan listed the hourly fee at $149.61 per hour for a social worker. The respondent approved the rate of $100.00 per hour.

19The applicant submitted the treatment plan indicating a social worker would provide the therapy, however, the proposed hourly rate is for a psychologist. The applicant did not make any submissions or reply submissions regarding the hourly rate, or the qualifications of the social worker administering the therapy sessions.

20In the explanation of benefits letter dated February 28, 2022 the respondent approved the psychotherapy treatment and completion of a progress report, with an approved rate of $100.00 per hour for the social worker and psychotherapist respectively. The respondent states the approved rate is as per the Financial Services Regulatory Authority (“FSRA”) Professional Services Guideline.

21The fee for services provided through the Schedule is governed by the Professional Services 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 providers is $58.19 per hour. The amounts payable by an insurer related to professional services not covered by the Guideline are to be determined by the parties involved.

22The Guideline does not specify a rate for social workers. Rather, the rate stipulated for unregulated providers 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 respondent approved a rate of $100.00 per hour and the applicant has not directed me to the providers qualifications or evidence of how the proposed rate was established for the social worker.

23I find the applicant has not demonstrated on a balance of probabilities that the remaining balances in the treatment plans are reasonable or necessary.

The applicant is not entitled to the unapproved amount of $1,041.88 ($3,701.88 less $2,600.00 approved) for the treatment plan for psychological services

24I find on a balance of probabilities the applicant has not demonstrated the unapproved amount in the psychological services treatment plan is reasonable and necessary. The applicant is not entitled to the unapproved amount of the disputed treatment plan.

25The applicant submits the psychological services treatment plan is reasonable and necessary for her recovery from her accident-related impairments including complaints of physical pain and emotional distress.

26The psychological services treatment plan proposed by Raymond Wong, occupational therapist, dated November 11, 2022 is for $3,701.88, with $2,660.00 approved by the respondent. The unapproved amount of $1,041.88 in the plan was due to the disputed hourly rates for the therapist, Ms. Joyce Zhou. The treatment plan listed the hourly fee at $149.61 per hour for a social worker. The respondent approved the rate of $100.00 per hour.

27The applicant did not make any submissions or reply submissions regarding the hourly rate, or the qualifications of the provider administering the therapy sessions.

28I find the applicant has not demonstrated entitlement to the unapproved amount for the treatment plan for psychological services.

The applicant is not entitled to the treatment plan in the amount of $3,701.88 for psychological services

29I find on a balance of probabilities the applicant has not demonstrated the psychological services treatment plan is reasonable and necessary.

30The applicant submits the treatment plan is reasonable and necessary due to his accident-related impairments.

31The respondent submits that the applicant was advised by correspondence dated August 16, 2023 that the treatment plan was previously partially approved for $2,660.00 and this treatment plan “was submitted on HCAI in error by the provider” and has therefore withdrawn the plan on their behalf.

32I find the applicant is not entitled to this treatment plan. The applicant did not make any submissions or reply submissions regarding the duplicate treatment plan.

33I find the applicant has not demonstrated on a balance of probabilities that the psychological services treatment plan in dispute is reasonable and necessary.

Interest

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing the applicant is not entitled to interest.

Award

35The applicant seeks an award under section 10 of Regulation 664. Under section 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.

36The applicant submits the respondent acted unreasonably by denying access to benefits and treatment. The applicant relies on the medical documentation, including X-ray, CNRs from the family doctor, and the psychological assessment report prepared by Dr. McDowall.

37I find the applicant has not met the onus to prove, on a balance of probabilities, that the respondent unreasonably withheld or delayed the benefits in dispute. I find an award is not appropriate.

ORDER

38The applicant is not entitled to the treatment plans.

39As there are no overdue benefits, the applicant is not entitled to interest.

40The applicant is not entitled to an award under s. 10 of Reg 664 because no payments were unreasonably withheld or delayed.

41The application is dismissed.