Licence Appeal Tribunal File Number: 23-014119/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:
Wei Chen Zhang
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Rakesh Sharma, Counsel
For the Respondent:
Michael W. Chadwick, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Wei Chen Zhang, the applicant, was involved in an automobile accident on May 3, 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 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 an income replacement benefit in the amount of $400.00 per week from May 10, 2022 and ongoing?
ii. Is the applicant entitled to the services proposed by Somatic Assessments and Treatment Clinic (“Somatic”), as follows:
$2,247.19 ($3,701.88 less $1,454.69 approved) for psychological services, in a treatment plan dated May 19, 2023
$1,401.88 ($3,701.88 less $2,300.00 approved) for psychological (social worker) services, in a treatment plan dated November 21, 2023; and
$1,401.88 ($3,701.88 less $2,300.00 approved) for psychological (social worker) services, in a treatment plan dated March 5, 2024?
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?
3The Case Conference Report and Order (“CCRO”) dated May 10, 2024, lists issue 2 as, “Is the applicant entitled to $202.59 ($1,297.64 less $1,095.05 approved) for chiropractic services, proposed by Easy Health Centre in a treatment plan dated July 30, 2022?”. The respondent advised that this treatment plan is no longer in dispute. The applicant did not provide a reply to the respondent’s submissions. Therefore, I have not included it in the issues in dispute.
4The CCRO lists issue 3 as, “Is the applicant entitled to $580.08 ($1,541.39 less $961.31 approved) for chiropractic services, proposed by Easy Health Centre in a treatment plan dated September 3, 2022?”. The applicant advised in his submissions that he does not dispute this issue. Therefore, I have not included it in the issues in dispute.
5The CCRO lists issue 4 as, “Is the applicant entitled to $1,652.48 for chiropractic services, proposed by Easy Health Centre in a treatment plan dated December 2, 2022?” The applicant advised in his submissions that he does not dispute this issue. Therefore, I have not included it in the issues in dispute.
6The CCRO lists issue 6 as, “Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated May 25, 2022?” The applicant advised in his submissions that he does not dispute this issue. Therefore, I have not included it in the issues in dispute.
RESULT
7I find that the applicant is not entitled to an IRB at the rate of $400.00 per week from May 10, 2022 and ongoing.
8I find that the applicant is entitled to the balance of the cost of preparing the treatment plan dated May 19, 2023 in the amount of $200.00, plus interest. I find that the applicant is not entitled to the remaining balance of the treatment plan.
9I find that the applicant is not entitled to the balance of the treatment plans for psychological (social work) services, dated November 21, 2023 and March 5, 2024.
10I find the respondent is not required to pay an award under s. 10 of Reg. 664.
ANALYSIS
Entitlement to Income Replacement Benefits (“IRBs”)
11I find that the applicant is not entitled to an IRB at the rate of $400.00 per week from May 10, 2022 and ongoing.
12Section 5(1) of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
Background
13Prior to the accident, the applicant was self-employed in a glass installation business called Y.Z. Glass Experts Ltd.
14The applicant submitted his Application for Accident Benefits (“OCF-1”) and Election of Benefits (“OCF-10”), dated May 4, 2022, to the respondent on June 2, 2022. By letter dated June 13, 2022, the respondent acknowledged receipt of the OCF-1 and the OCF-10. The letter requests that the applicant provide a completed Disability Certificate (“OCF-3”) and Employer’s Confirmation Form (“OCF-2”) in order to determine if he is eligible for IRBs.
15By letter dated September 8, 2022, the respondent requested that the applicant provide an OCF-3 and advise of the date he returned to work. It advised the applicant that should this information not be provided by September 22, 2022, his benefits would be suspended.
16By letter dated September 23, 2022, the respondent advised the applicant that it had not received the requested OCF-3 to review his entitlement to IRBs and therefore no benefit is payable from September 22, 2022, until the date it receives the requested information.
17The applicant submitted his OCF-3 prepared by Dr. Hyo Kim, chiropractor, of Easy Health Centre, dated May 28, 2022, to the respondent on October 4, 2022.
18By letter dated October 17, 2022, the respondent acknowledged receipt of the OCF-3 dated May 27, 2022, and requested that the applicant provide an OCF-2 by October 31, 2022, to determine his eligibility.
19By letter dated November 10, 2022, the respondent advised the applicant that it had not received the requested OCF-2 and therefore his IRB is suspended starting November 10, 2022, pending receipt of the OCF-2.
20By letter dated December 12, 2022, the respondent advised the applicant that he was required to attend a s. 44 Insurer’s Examination (“IE”) to review his entitlement to an IRB. The IE was scheduled with Dr. Pankaj Bansal, family medicine, on December 28, 2022. The reasons for the IE were set out as follows:
i. Based on the Disability Certificate (OCF-3) dated May 28, 2022, the estimated duration of disability stated for your IRB is 9-12 weeks and we have passed this time period. Due to the nature of the soft tissue injuries sustained in the accident, no prior health conditions or injury that would affect your response to treatment and the time elapsed since the accident, we require a 2nd medical opinion to determine if you continue to be eligible for the income replacement benefit. Assessments under section 44(1) and 37.1(b) of the Statutory Accident Benefits Schedule (SABS) are required.
21The IE report of Dr. Bansal was prepared dated January 6, 2023, and an Addendum report was prepared dated January 18, 2023. By letter dated January 20, 2023, the respondent advised the applicant that based on the assessment by Dr. Bansal and the file documentation, from a musculoskeletal perspective he does not suffer a substantial inability to perform the essential tasks of his pre-accident self-employment and therefore he is not eligible for an IRB effective January 20, 2023. The letter further advises that the respondent was still awaiting receipt of an OCF-2 which was due on October 31, 2022.
22The applicant submits that he provided the respondent with his 2022 and 2023 Tax Returns as proof of his post-accident income. The respondent submits that the applicant did not produce his 2022 and 2023 tax returns for his business until August 23, 2024. He did not provide his 2022 personal tax return until April 17, 2024 and his 2023 personal tax return until October 15, 2024.
23To date the applicant has not submitted an OCF-2.
Parties Positions
24The applicant claims that he is entitled to an IRB from May 10, 2022 and ongoing. He relies on the OCF-3, dated May 28, 2022, which states that he has met the disability test for IRBs. He submits that his tax returns for the years 2022 and 2023 support his entitlement to $400.00 per week.
25The applicant submits that he is entitled to an IRB from May 10, 2022 to the suspension date of November 10, 2022 because the statutory requirement to claim entitlement to an IRB under s. 36 of the Schedule is to submit an OCF-1 and an OCF-3. The applicant submits that he submitted both documents and also provided his 2022 and 2023 tax returns to support the amount of IRBs payable.
26The applicant submits that he is entitled to an IRB from November 10, 2022 to the denial date of January 20, 2023, as there is no requirement under the Schedule to provide an OCF-2. The applicant submits that all that is required to claim entitlement to an IRB is a completed OCF-1, OCF-3 and proof of pre-accident and post-accident employment income, all of which were provided to the respondent.
27The applicant further submits that he continues to be entitled to an IRB from January 20, 2023 and ongoing as the s. 44 Insurer’s Examination reports of Dr. Bansal, dated January 6 and January 18, 2023, are statutorily deficient. The applicant submits that Dr. Bansal did not identify in detail the essential tasks of his pre-accident employment in order to evaluate the effect of the applicant’s injuries on his ability to perform the essential tasks of his employment.
28The respondent submits that the applicant has not established on a balance of probabilities that he meets the test for entitlement to IRBs. It submits that pursuant to s. 36(3) of the Schedule, that no IRB is payable prior to the submission of an OCF-3, which was only provided on October 4, 2023. The respondent further submits that apart from the OCF-3, no medical evidence has been submitted by the applicant to support his entitlement to an IRB.
29The respondent submits it made numerous requests for information including the OCF-2, OCF-3, the date the applicant returned to work, as well as an explanation for the delay in providing this information, pursuant to s. 33(1) of the Schedule. It submits that the applicant did not respond to any of these requests apart from providing the OCF-3 on October 4, 2023.
30The respondent further submits that the applicant did not produce his 2022 and 2023 tax returns for his business until August 23, 2024. He did not provide his 2022 personal tax return until April 17, 2024, and his 2023 personal tax return until October 15, 2024. Production of the employment file from Menzie’s Aviation Fuel is still outstanding in non-compliance with the CCRO. The respondent states that the applicant has still not advised of the date he returned to work despite the CCRO ordering same. It submits that the applicant has not provided evidence on the proper quantum of IRB and no explanation for the delay has been provided.
31The respondent relies upon the IE report of Dr. Bansal. It states that the applicant told Dr. Bansal during the examination that he was off work for one week and then returned to work 12 hours per day, five days per week, the same hours that he was working pre-accident. Dr. Bansal concluded that the applicant sustained soft tissue injuries and that he did not meet the test for entitlement to an IRB.
32The respondent submits that Dr. Bansal’s opinion is supported by the applicant’s activity level as referenced in the clinical notes and records (“CNRs”) of his family physician, Dr. Cheung. It refers to the CNR dated January 11, 2023, which notes that the applicant was complaining of a right knee injury as a result of a skiing injury. It also refers to the CNR dated March 12, 2024, which notes that he is a “shower installer” and was complaining of a sharp pain he had in his back for a month but was “very busy and unable to see a doctor”.
33The respondent submits that apart from the OCF-3, the applicant has not submitted any medical evidence to establish that he meets the test for entitlement to an IRB. It argues that the OCF-3 does not identify any particulars of the applicant’s employment and sets out a number of soft tissue injuries and an anticipated duration of disability of 9-12 weeks. The respondent states that it provides no analysis of the disability test. The respondent further states that the OCF-3 is dated May 28, 2022, but was not submitted until more than 18 weeks after it was signed by Dr. Kim and after the anticipated disability ended.
The applicant is not entitled to an IRB
34I agree with the respondent that pursuant to s. 36(3) of the Schedule, no IRB is payable prior to the submission of an OCF-3. As the OCF-3 was not provided until October 4, 2023, the applicant is not entitled to an IRB prior to this date.
35With respect to the applicant’s entitlement post-October 4, 2023, I find that the applicant has not provided sufficient medical evidence to support his entitlement to an IRB. While the applicant relies upon the OCF-3 that was prepared on May 28, 2022, the OCF-3 indicated the duration of disability to be 9-12 weeks. Therefore, by October 4, 2022, the date that it was submitted, the disability period had ended. I find that the applicant has not provided any further medical evidence other than the OCF-3 to support his entitlement to an IRB. I find that the applicant has not provided any evidence identifying the essential tasks of his employment at the time of the accident, which tasks he was unable to perform, or to what extent he was unable to perform them. He did not lead any evidence to support that he suffered a substantial inability to perform the essential tasks of his employment.
36In addition, while the applicant claims that the report of Dr. Bansal is deficient because he did not discuss the essential tasks of the applicant’s pre-accident employment, the onus is on the applicant to prove entitlement, not the respondent to disprove entitlement. I find that the applicant has not pointed the Tribunal to any further medical documentation to support his entitlement to an IRB.
37Even if I had found that the OCF-3 on its own supports the applicant’s entitlement to an IRB, I find that the applicant has failed to provide the respondent with the information it requested or provide an explanation for the delay. Pursuant to s. 33(1) of the Schedule, the applicant is required to provide the respondent with any information reasonably required to assist the respondent in determining the applicant’s entitlement to the benefit. Subsection 33(6) of the Schedule states that the respondent is not liable to pay the benefit for the period in which the applicant fails to comply with the subsection 33(1) request for reasonably required information. Despite numerous requests for the applicant to provide an OCF-2 as well as the date he returned to work, there is no evidence that this information has been submitted to the respondent. While the applicant eventually provided copies of his 2022 and 2023 tax returns in 2024, he still has not provided an OCF-2 or advised of the date he returned to work. I further find that the applicant has not provided any particulars in his submissions about his employment or the date he was able to return to work following the accident. I find that the applicant has not provide any explanation for the delay in providing this information.
38With respect to the applicant’s submissions about the notice letters of the respondent being statutorily deficient, I do not agree. I find that the respondent’s Notice letter dated December 12, 2022, provided the applicant with the medical reasons for the IE assessment. In addition, the respondent’s denial letter dated January 20, 2023, provided the applicant with the medical reasons for the denial with reference to his specific medical condition as set out in the OCF-3 as well as the conclusions of Dr. Bansal.
39For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he is entitled to an IRB.
Entitlement to medical and rehabilitation benefits
40To receive payment for a treatment and assessment plan 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 will be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
Entitlement to the balance of the treatment plan for psychological services
41I find that the applicant is entitled to psychological services at the rate of $99.75 per hour, he is not entitled to the progress report in the amount of $360.00 and he is entitled to $200.00 for the cost of completion of the treatment plan.
42The applicant claims entitlement to $2,247.19 ($3,701.88 less approved $1,454.69), the outstanding balance of the treatment plan for psychological services, dated May 19, 2023. The plan recommends 14 1.5-hour-sessions with Joyce Zhou, psychotherapist, at the rate of $149.61; documentation support activity in the amount of $360.00, and documentation support activity for claim form in the amount of $200.00.
43The respondent approved 14-1.5-hour sessions at the rate of $99.75 for a psychotherapist, instead of the proposed psychologist rate of $149.61. The respondent denied the cost of a progress report in the amount of $360.00 and paid $58.19 toward the completion of the treatment plan instead of the proposed amount of $200.00.
44The fee for services provided through the Schedule is governed by the Professional Services Guideline issued as Superintendent’s Guideline No. 03/14 (the “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.
45The Guideline does not specify the rate for psychotherapists. 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 psychotherapist, it is left to the parties to determine what the acceptable hourly rate would be. The applicant must prove that the higher hourly rate is reasonable on a balance of probabilities.
46The applicant submits that Ms. Zhou, psychotherapist, is entitled to the hourly rate of $149.61, because she is working under the supervision of Dr. Bruce Cook, psychologist.
47The respondent submits that the applicant has not provided any evidence to justify the rate sought. It submits that no evidence has been submitted as to the psychotherapist’s education, training, experience, typical hourly rate or expertise, to justify the hourly rate of $149.61. The respondent cites the Tribunal decisions in Wackowska v. Aviva Insurance Canada, 2024 CanLII 108223 (ON LAT), Dhanji v. Aviva Insurance Company of Canada, 2021 CanLII 19424 (ON LAT), and Kane v. Aviva Insurance Company, 2021 CanLII 55137 (ON LAT) where the Tribunal determined the appropriate rates for psychotherapists.
48I find that the applicant has not proven on a balance of probabilities that Ms. Zhou should be paid at the enhanced hourly rate for a psychologist. I find that the applicant has not provided any case law in support of his submission that a psychotherapist working under the supervision of a psychologist is entitled to the same hourly rate as psychologists. I further find that the applicant has not provided any evidence to support his claim that Ms. Zhou was under the active supervision of psychologist, Dr. Cook. There is no description of the frequency of the supervision provided or how the supervision was structured – such as in person, by way of weekly meetings, or otherwise. The applicant’s submissions did not reference any clinical supervision reports or any method where such supervision was recorded. Without such evidence, I am unable to assess the scope of any supervision by a psychologist. I therefore find that the applicant has not demonstrated entitlement to the enhanced rate of $149.61 per hour and she is entitled to be paid at the rate of $99.75 per hour as approved by the respondent.
49I find that while the applicant submits that the respondent only approved 1-hour sessions of treatment, the respondent’s letter dated July 6, 2023, approves 14 sessions of 90-minute psychotherapy. Therefore, the length of the treatment sessions is not in dispute.
50With respect to the denial of the progress report, the applicant submits that it is an integral part of the evaluation of the treatment provided to map progress towards rehabilitation and to determine the need and type of future treatment. He submits that the respondent is not a regulated health professional and therefore it is not competent to render a medical opinion as to the necessity of the progress report.
51The respondent submits that the applicant has not submitted any evidence as to why a progress report is reasonable and necessary in light of it advising the applicant that it did not require a progress report. It further submits that the applicant’s submission that it is an integral part of the evaluation and treatment is not supported by any evidence.
52I find that the evidence does not support that a progress report is a required component of the applicant’s treatment. The psychotherapist is required to document the services provided to the applicant and this information ought to be sufficient to update other treatment providers or to determine whether additional treatment is required. Other than submitting that the progress report is required to assess his progress and need for further treatment, the applicant did not provide any additional reasons why the progress report is a reasonable and necessary component of the treatment plan. I therefore find that the progress report in the treatment plan is not reasonable and necessary, as there is no evidence that other treatment providers requested or require a progress report.
53The applicant submits that he is entitled to $200.00 for the cost of completing the treatment plan and the respondent has incorrectly assumed that it was completed by an administrator rather than Dr. Cook, psychologist, resulting in an approval of $58.19 rather than the proposed cost of $200.00.
54The respondent submits that there is no evidence that Dr. Cook completed the treatment plan rather than an administrator. It submits that the applicant has not proven that anything more than $58.19, the maximum rate for unregulated providers, ought to be approved.
55I find upon review of the treatment plan that there is no indication that the treatment plan was completed by an administrator and not by Dr. Cook. Under Part 4 Signature of Health Practitioner, it lists Dr. Cook. I therefore find that the applicant is entitled to $200.00 for the cost of preparing the treatment plan.
56For the reasons set out above, I find that the applicant has not met his onus of demonstrating that Ms. Zhou psychotherapist, should be paid the enhanced hourly rate of a psychologist. I find that the $99.75 per hour approved by the respondent to be reasonable. I find that the applicant has not met his onus of demonstrating that the progress report is reasonable and necessary. I further find that the applicant has met his onus of demonstrating that he is entitled to $200.00 for the cost of completion of the treatment plan.
Entitlement to treatment plans for psychological (social worker) services
57I find that the applicant is entitled to social work services at the rate of $100.00 per hour and he is not entitled to the progress report in the amount of $360.00.
58The applicant claims entitlement to $1,401.88 ($3,701.88 less $2,300.00 approved, the outstanding balance of the treatment plans for social work services dated November 21, 2023 and March 5, 2024. Each plan recommends 14-1.5-hour sessions at the rate of $149.61 per hour with Lau Wingki, social worker, documentation, support activity in the amount of $360.00 and documentation, support activity for claim form in the amount of $200.00.
59The respondent approved 14-1.5-hour sessions at the rate of $100.00 per hour for a social worker, instead of the proposed psychologist rate of $149.61. The respondent denied the cost of a progress report in the amount of $360.00.
60The applicant submits that Mr. Wingki, social worker is entitled to the hourly rate of $149.61. He submits that the Guideline does not state the rate for a social worker providing mental health services and therefore any ambiguity should be interpreted in his favour and the rate of $149.61 for a psychologist should be applied.
61The respondent submits that the applicant has not provided any evidence to justify the rate sought. It submits that no evidence has been submitted as to the social worker’s education, training, experience, typical hourly rate or expertise.
62I find that the applicant has not proven on a balance of probabilities that Mr. Wingki should be paid at the enhanced hourly rate for a psychologist. I find that the applicant has not provided any case law in support of his submission that a social worker is entitled to the same hourly rate as psychologists. I further find that the applicant has not led any evidence indicating that Mr. Wingki has specialized training, is qualified in cognitive behavioural therapy, or provided services similar to what a psychologist would provide. As a result, I do not have sufficient evidence before me to consider whether Mr. Wingki’s qualifications and experience warrant the higher hourly rate proposed by the applicant and as such, the applicant has not met his onus in this regard.
63With respect to the progress report, I refer to my findings above. I find that the evidence does not support that a progress report is a required component of the applicant’s treatment and is therefore not payable.
64For the reasons set out above, I find that the applicant has not met his onus of demonstrating that Mr. Wingki, social worker, should be paid the enhanced hourly rate of a psychologist. I find that the $100.00 per hour approved by the respondent to be reasonable. I further find that the applicant has not met his onus of demonstrating that the progress report is reasonable and necessary.
Interest
65Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to $200.00 for the cost of completing the treatment plan, dated May 19, 2023, interest applies on the balance owing.
Award
66The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant seeks an award based on the respondent unreasonably denying him benefits. I find that the applicant is not entitled to an award under s. 10 of Reg. 664, because there is no evidence before me of the respondent unreasonably withholding or delaying the payment of benefits.
ORDER
67For the reasons set out above, I find:
i. The applicant is not entitled to an IRB at the rate of $400.00 per week from May 10, 2022 and ongoing;
ii. The applicant is entitled to the balance of the cost of preparing the treatment plan dated May 19, 2023 in the amount of $200.00, plus interest. The applicant is not entitled to the remaining balance of the treatment plan;
iii. The applicant is not entitled to the balance of the treatment plans for psychological (social work) services, dated November 21, 2023 and March 5, 2024; and
iv. The respondent is not required to pay an award under s. 10 of Reg. 664.
Released: September 25, 2025
__________________________
Melanie Malach
Adjudicator