Licence Appeal Tribunal File Number: 24-008864/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:
Yi Chen
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Ryan Olson, Paralegal
For the Respondent:
Tiziana Serpa, Counsel
HEARD: In Writing
OVERVIEW
1Yi Chen, the applicant, was involved in an automobile accident on September 28, 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 $598.32 ($2,355.36 less $1,757.04 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 (“plan”) dated June 28, 2023?
ii. Is the applicant entitled to $2,355.36 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a plan dated October 4, 2023?
iii. Is the applicant entitled to $2,200.00 for a Catastrophic Impairment Assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated July 17, 2024?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the issue i.
4The applicant is not entitled to issues ii, iii or iv, nor an award.
5Interest is granted on issue i, as per the Schedule.
ANALYSIS
Is the applicant entitled to $598.32 for Psychological Services (Issue i)?
6The applicant is entitled to the disputed amount identified in issue number one.
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 dispute arises out of rates paid to the treatment provider for psychological services. The Professional Services Guide outlines the rates to be paid for treatment professionals, and says a Psychologist can be compensated at $149.61 per hour. Psychotherapists are not included in the Professional Services Guide, and the insurer has approved a lower rate of 99.50 per hour.
9The applicant argues they are entitled to the full rate of $149.61 per hour. To support their claim, they rely on J.V. vs Intact Insurance Company (J.V. v Intact Insurance Company, 2019 CanLII 76995 (ON LAT), which says a psychotherapist who is conducting psychological and cognitive behavioural therapy services that are within their expertise shall not be disentitled to be paid the same rate as a psychologist.
10The applicant further submits that the psychotherapist, Ms. Janice Liu, was performing the same services as a psychologist, and that a psychologist, Dr. Bruce Cook, was supervising the work in question. Finally, the applicant submits that Ms. Liu speaks fluent Mandarin, which is advantageous to both the applicant and the respondent because interpretive services will not be required.
11The respondent argues that J.V. v Intact should not apply because the psychotherapist in that case was certified in cognitive behavioural therapy and was providing such services. The respondent claims that in this particular treatment plan, the proposed plan does not include cognitive behavioural therapy. Further, the respondent argues that Ms. Liu has not disclosed her CV, training or qualifications to demonstrate why the psychologist hourly rate ought to apply, nor is she a member of the Ontario Association of Consultants, Counsellors, Psychometrists and Psychotherapists. And finally, the respondent suggests that were a psychologist to do the work in question, interpretive services could have been included in the plan and submitted for consideration, but this was not done.
12I am not convinced by the respondent’s submission. The respondent claims that cognitive behavioural therapy was not being used but I do not believe this is accurate. I reach this conclusion because upon review of the CNR’s from Ms. Liu, I note several references of cognitive behavioural therapy being used in the sessions, which indicates CBT training from Ms. Liu.
13Further, I do note that the work being conducted by Ms. Liu is under the supervision of a Psychologist, Dr. Bruce Cook. I also note that Ms. Liu is a registered member of the College of Psychotherapists for the Province of Ontario, the regulatory body. Accordingly, I give little weight to the argument that Ms. Liu is not registered in an Industry Association.
14In summary, I have been led to evidence that indicates the work being conducted by Ms. Liu is essentially the same as that of a psychologist.
15I find, on the balance of probabilities, that the applicant has established entitlement to the higher rate and the disputed amount for this treatment plan.
Is the applicant entitled to psychological services?
16The applicant is not entitled to 2,355.36 for psychological services, identified as Issue #ii.
17The treatment plan is for 8 sessions of therapy, authored by Occupational Therapist Raymond Wong with therapy provided by Psychotherapist Janet Liu, with a stated goal of a return to the activities of normal living.
18The applicant submits that multiple psychological progress reports were completed before this treatment plan was submitted, all of which outlined the applicant’s progress and treatment needs. The last progress report, authored by psychotherapist Ms. Janet Liu, was dated September 30, 2023, which is contemporaneous to the treatment plan, filed October 4, 2023. In the Progress Report, Ms. Liu stated that the applicant continued to meet the criteria for Adjustment Disorder Mixed with Anxiety and Depressed Mood, and she recommended eight 90-minute sessions of therapy.
19The applicant also relies on the Clinical Notes and Records from his family physician, Dr. Chongen Liu. The applicant has submitted the records from a visit to Dr. Liu dated September 14, 2023, where the applicant complained of ongoing anxiety related to the motor vehicle accident.
20Finally, the applicant has submitted the CNR’s from psychologist Dr. Shou Xiang, when Dr. Xiang examined the applicant on December 2, 2023.
21The respondent argues the treatment plan is not reasonable or necessary. To support its argument, it relies upon the s. 44 Psychological Assessment Report from Psychologist Dr. Mohammad Nikkhou, conducted May 15, 2024.
22Dr. Nikkhou reported significant over-reporting and validity concerns with the applicant, inconsistencies and exaggerated self-reporting. He further reported that the applicant, having received nearly 50 sessions of therapy, had reached maximal psychological improvement and that any additional treatment “may cause an unnecessary dependency.”
23The respondent also raises a concern with the OCF-18 in question, arguing it was not submitted by a Psychologist or Psychotherapist, but rather by Occupational Therapist Mr. Raymond Wong.
24I find that the applicant has not established entitlement to this plan because the CNR’s from Psychotherapist Lui suggest the applicant is involved in a number of business ventures, which are contributing negatively to the applicant’s mental health. At the same time, the Psychological Progress Report from Ms. Lui indicates that the applicant is driving on his own, is independent in his daily tasks, is no longer having nightmares and that his overall sleep has improved. This leads me to question the overall reasonableness and necessity of further therapy because this indicates that the treatment goals have largely been met.
25In summary, I find inconsistencies in the applicant’s evidence regarding the nature of his mental health, whether the applicant’s mental health is entirely accident related, and whether the purported need for ongoing treatment is as a result of the accident. I find this lines up with the respondent’s evidence, which I give more weight to because it addresses the issue of the need (or lack thereof) for treatment after a prolonged number of sessions. The respondent’s evidence states there is an issue with inconsistencies, exaggeration and that if he were to continue seeking treatment, he may develop a potential dependency. Given that the applicant has had over 50 sessions of therapy, and is largely independent in his daily living, the applicant has not submitted evidence to indicate why a further eight sessions would be required. For this reason, I do not find that further treatments would be reasonable or necessary.
26For these reasons, I find the applicant has not, on the balance of probabilities, established that he is entitled to the OCF-18 at dispute in Issue #2.
Catastrophic Impairment Assessment
27I find the applicant is not entitled to a Catastrophic (“CAT”) Impairment Assessment.
28The 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.
29The treatment plan is for a paper review of the applicant’s Catastrophic Impairment application, to be reviewed by physician Dr. Joseph Siu-Wah. It was unclear from either submission whether a CAT claim is currently underway or what that status is.
30The applicant argues a CAT assessment is reasonable and necessary. To support his claim, he relies on a s.25 Assessment Report conducted January 17, 2025 by physiatrist Dr. Joseph Wong. In the OCF-19 that followed the report and that was filed with the respondent, Dr. Wong suggests that the applicant has both mental and physical impairments categorized under criterions 6, 7 and 8.
31The respondent argues a CAT assessment is not reasonable nor necessary. To support its argument, it claims that as a physiatrist, Dr. Wong is not qualified to make findings related to criterion 7 and 8.
32Furthermore, upon review of Dr. Wong’s report, which was a paper review, the respondent notes that Dr. Wong’s review did not include the CNR’s from Janice Liu, his psychotherapist.
33I find that Ms. Liu has observed that the applicant is independent with his self-care and housekeeping tasks, cares for his pets, resumed driving and has returned to his pre-accident sleep schedule. Furthermore, I note that the applicant is reported to be not only working for himself but also assisting his friends with their businesses.
34Although the onus is on the applicant to establish that an assessment is reasonable and necessary, I have not been led to further CNR’s or medical records which would indicate that the applicant has continued to seek mental health treatment, either through the respondent or the OHIP system. The applicant did not submit evidence regarding how much funding he has incurred, and why is seeking CAT status at this time.
35The respondent has submitted that the applicant has only incurred $18,260.66 in funding. They further point to the evidence presented by the applicant as a they claim it does not paint a picture of someone who is catastrophically impaired. Further, they point that a CAT designation would require much more than a simple paper review to determine eligibility.
36With respect, and after reviewing the entirety of the applicant’s submissions and medical evidence, it remains unclear what accident-related impairments he believes will result in a CAT designation in order to justify that the cost. In a similar vein, other than his assertion that funding an assessment would be procedurally fair, he has not provided specific submissions to speak to why the CAT assessments proposed is necessary or why the cost is reasonable, especially given the fact that he has not come anywhere close to approaching funding limits. Accordingly, I find the applicant is not entitled to payment for the CAT assessments because there is no reasonable basis to investigate whether the applicant is catastrophically impaired.
37For these reasons, I do not find that the applicant has, on the balance of probabilities, met his onus to establish that a Catastrophic Impairment Assessment is either reasonable or necessary.
Interest
38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies on issue I, as per the Schedule.
Award
39The 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.
40The applicant submits that the respondent has breached the relationship between an insured and the insurer, and that an award of 50% is reasonable as a precedent to deter further conduct of “categorically ignoring the medical records of all the applicant’s treating practitioners.”
41I find that while the respondent was mistaken on issue I, it has not acted unreasonably or withheld or delayed payment of benefits on the remainder of the application.
42For this reason, I find the respondent’s conduct does not rise to the level of an award.
43No award is payable.
ORDER
44The application is granted in part.
i. The applicant is entitled to issue i.
ii. The applicant is not entitled to the remainder of the issues in dispute.
iii. Interest applies on issue i, as per the Schedule.
iv. An award is not payable.
Released: February 25, 2026
Jeff Chatterton
Adjudicator