Citation: Zhang v. Aviva General Insurance Company, 2026 ONLAT 24-004572/AABS

Licence Appeal Tribunal File Number: 24-004572/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:

Ruzhao Zhang

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Robert Fleming

APPEARANCES:

For the Applicant:

Rakesh Sharma, Counsel

For the Respondent:

Justin Chan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ruzhao Zhang, the applicant, was involved in an automobile accident on May 6, 2023, 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 Company, 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 $3,749.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 dated August 17, 2023?

ii. Is the applicant entitled to $747.84 ($2,804.12 less $2,056.28 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 dated August 21, 2023?

iii. Is the applicant entitled to $372.06 ($1,682.06 less $1,310.00 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 dated March 18, 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?

3The parties agreed that for issue ii above, the amount in dispute was changed from the amount stated in the Case Conference Report and Order to reflect the updated hourly rate approved by the respondent of $99.75/hour.

RESULT

4I find that the applicant is not entitled to the treatment plan for physiotherapy services dated August 17, 2023.

5I find the applicant is not entitled to the balance of the plans in dispute for the treatment plan for psychological services dated August 21, 2023 and March 18, 2024.

6I find that the respondent is not liable to pay a special award because it unreasonably withheld or delayed payment to the applicant.

7I find that interest does not apply as there is no payment of overdue benefits in accordance with s. 51 of the Schedule.

PROCEDURAL ISSUE

Section 54 of the Schedule

9At the outset, I note that the applicant submits that the denial reasons provided by the respondent under section 54 of the Schedule were flawed, arbitrary and statutorily deficient. The applicant further submits that their burden is only to disprove the original denial reasons on a balance of probabilities. Lastly, the applicant submits that the respondent cannot introduce new reasons for their denial of benefits that are not in the original denial letters.

10Section 54 of the Schedule provides that if an insurer refuses to pay a benefit or reduces the amount of a benefit that a person is receiving, the insurer shall provide the person with a written notice advising the person of his or her right to dispute the refusal or reduction. I find that the respondent has complied with s. 54 of the Schedule and provided the applicant with clear and unequivocal denials. I also find that the respondent advised the applicant of his right to dispute the refusal within these denials.

11The applicant does not provide any authority to support their interpretation of s. 54 of the Schedule that the respondent cannot introduce new reasons for their denial of benefits that were not noted in the original denial letters. Section 54 requires an insurer to provide a clear and unequivocal denial letter and to advise the insured of their right to dispute the refusal. Section 54 does not indicate that the respondent can only make submissions based on the original denial letters or that it is not permitted to make new submissions. Indeed, it is well-settled that it is the applicant’s burden to demonstrate entitlement to accident benefits.

12I find that a plain reading of s. 54 does not limit the applicant’s burden to disproving the original denial reasons on a balance of probabilities. I further find that s. 54 does not prevent the respondent from arguing new reasons for their denial of benefits that are not in the original denial letters. The respondent is entitled to present its case, including submissions on its position and responses to the applicant’s submissions and evidence at this hearing.

13For these reasons, I do not accept the applicant’s submission that the respondent may not rely on its submissions and evidence for this hearing.

ANALYSIS

14To receive payment for a treatment plan (OCF-18) 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. 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 same are reasonable.

15In this matter, the applicant seeks entitlement to the treatment plans because they are reasonable and necessary.

16I find that the applicant has not demonstrated that this treatment plan is reasonable and necessary.

17The applicant claims entitlement to $3,749.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 dated August 17, 2023. The applicant relies on the OCF-18 and Explanation of Benefits (EOB) for this plan to establish the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving same are reasonable.

18The applicant submits that they met all legal requirements for establishing that the treatment plan proposed reasonable and necessary treatment outside the Minor Injury Guideline (MIG) by submitting a completed OCF-18 in accordance with section 38(3) of the Schedule because parts 4 to 12 of the treatment plan were completed by a regulated health professional, Ahmad Affifi, Physiotherapist. Ahmad Affifi opined that the proposed costs and services were required for the applicant’s rehabilitation and that the applicant’s injuries from the accident are predominantly not minor injuries.

19The applicant further submits that section 38(3) of the Schedule does not require an applicant to submit additional medical records with an OCF-18 to prove that the treatment plan is reasonable and necessary.

20The applicant also submits that the respondent’s reasons for denying the claim were “arbitrary, flawed and statutorily deficient” because the OCF-18 was based on the injuries being non-minor and not on the exacerbation of pre-existing conditions. The applicant supports this submission by referring to the denial letter dated August 29, 2023 which stated there was a lack of supporting medical evidence and no evidence of pre-existing injury preventing recovery and by referring to the second denial letter dated October 6, 2023 which was based on an independent examination (IE) by Dr. Shafiq Dharamshi, physician (October 5, 2023) who concluded no accident-related impairment and that the applicant achieved maximum recovery The applicant pointed out that neither of these take into account the information provided on the OCF-18 by Ahmad Affifi, Physiotherapist,

21Lastly, the applicant submits that the respondent’s reasons for denying the claim were “arbitrary, flawed and statutorily deficient” because the IE report by Dr. Dharamshi should have been for the proposed treatments being reasonable and necessary, but the report’s stated purpose was for MIG determination. The applicant further submits that the applicant had already been removed from the MIG and that the report failed to analyze the specific information in the OCF-18.

22The applicant cites Hedley v. Aviva Insurance Company of Canada, 2 019 ONSC 5318 to support their argument that an insurer’s reasons for denial must be meaningful to allow the applicant to make informed decisions on whether to challenge the insurer’s determination. The applicant submits that Dr. Shafiq Dharamshi’s conclusion that the applicant had reached maximal medical recovery was conjecture and devoid of actual rationale because said conclusion was made without providing any analysis or evaluation within the body of the report to support the conclusion.

23The respondent submits that the claim was denied properly in its initial explanation of benefits (EOB), dated August 29, 2023, because the applicant had not yet provided clinical notes and records from a family doctor, hospital or treating practitioner to support the need for the services. The respondent supports its position that submission of an OCF-18 is not, on its own, valid or sufficient evidence to prove a treatment plan is reasonable and necessary by referring to sections 14 and 15 of the Schedule: that an insurer is only liable to pay for medical and rehabilitation expenses that are “reasonable and necessary”, and that the applicant bears the burden of proof.

24The respondent further supports its position by Ekelman v Co-operators General Insurance Company, 2023 CanLII 52352 (ON LAT), at paragraph 14, which states: “it is well-settled that OCF-18’s alone are not sufficient evidence of the reasonableness and necessity of a plan. Rather, additional medical evidence is required” and submits that based on this case law a persuasive analysis must be provided to meet the applicant’s burden of proof.

25Lastly, the respondent submits the applicant stated to Dr. Shafik Dharamshi the goals of the physiotherapy plan (pain reduction and return to daily activity) had already been met because the applicant had returned to work on a full-time basis, was independent in his housekeeping, home maintenance and activities of daily living and that he did not suffer from impairments affecting his pre-accident recreational activities.

26I find that the applicant has not demonstrated on a balance of probabilities that the treatment plans are reasonable and necessary. The applicant did not point to corroborating evidence to support their claim. The submission of an OCF-18 is not, on its own, without corroborating medical evidence, sufficient to prove a treatment plan is reasonable and necessary. The applicant did not point to clinical notes and records from a family doctor, hospital or treating practitioner to support the need for the services. The only corroborating evidence pointed to is the report from Dr. Dharamshi. However, Dr. Dharamshi concluded that the applicant had no musculoskeletal impairments, that the applicant had full range of motion in his cervical spine and no abnormalities in his left shoulder, that the applicant had reached MMI and MMR and that no further facility-based treatment was required. The report from Dr. Dharamshi also stated that the applicant had returned to work on a full-time basis, was independent in his housekeeping, home maintenance and activities of daily living and that he did not suffer from impairments affecting his pre-accident recreational activities. Considering the lack of corroborating, contemporaneous medical evidence recommending physiotherapy for accident-related injuries, I find that the applicant has not met his onus.

27I find that the applicant has not met his burden to establish, on a balance of probabilities, that he is entitled to the treatment plan specified above.

Section 38

28I further find that the respondent’s denial was compliant with s. 38 of the Schedule.

29Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.

30In this case, the respondent’s initial denial dated August 29, 2023 provided sufficient reasons why it considered the goods and services not to be reasonable and necessary and to permit the applicant to decide whether to challenge the denial. The initial denial was sufficient because the applicant had not provided medical records at the time for the respondent to evaluate the claim, which is a perfectly valid “other” reason for the denial. The clinical notes and record of the applicant’s family physician, Dr. Fong, were provided September 28, 2023.

31For these reasons, I find that the notice dated August 29, 2023 is compliant with s. 38 of the Schedule.

Not entitled to the balance of the treatment plan for psychological services, proposed by Somatic Assessments and Treatment Clinic in treatment plan/OCF-18 dated August 21, 2023.

32I find that the applicant is not entitled to the balance of the treatment plan.

33The applicant claims entitlement to the outstanding balance of $747.84 ($2,804.12 less $2,056.28 approved) of the treatment plan for psychological services dated August 21, 2023. The plan recommends 12 x 1.25-hour sessions with Joyce Zhou, psychotherapist, at a rate of $149.61 per hour, document support activity for $360.00 and completion of an OCF-18 for $200.00

34The respondent approved 12 x 1.25-hour sessions initially at the rate of $58.19 per hour and later at $99.75 per hour for a psychotherapist rather than the proposed rate for a psychologist of $149.61 per hour. The respondent also approved the document support activity for $360.00 and the completion of an OCF-18 for $200.00.

35The applicant must prove that the higher hourly rate is reasonable on a balance of probabilities.

36The 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.

37The 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.

38The applicant submits that Ms. Zhou, psychotherapist, is entitled to the hourly rate of $149.61, because she is working under the supervision of a psychologist, and that the insurer lacks medical competence to unilaterally determine appropriate rates.

39The respondent submits that the provider, Ms. Zhou, is a psychotherapist and not a psychologist whose qualifications are substantially different, that the Guideline does not list psychotherapists and that the $99.75 hourly rate approved is consistent with other Tribunal decisions. The respondent further submitted that the provider did not respond to an invitation to negotiate the rate and that by incurring the treatment the applicant essentially agreed to it.

40I find that the applicant has not proven on a balance of probabilities that the psychotherapist, Ms. Zhou, should be paid at the enhanced hourly rate for a psychologist. The applicant did not provide any evidence that Ms. Zhou was providing services equivalent to a psychologist or what scope of services she was providing that would indicate why her services should be compensated at the higher rate of 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.

41Therefore, I find that the applicant has not established, on a balance of probabilities, entitlement to the balance of the treatment plan.

Not entitled to the balance of the treatment plan for psychological services, proposed by Somatic Assessments and Treatment Clinic in treatment plan/OCF-18 dated March 18, 2024.

42I find that the applicant is not entitled to the balance of the treatment plan but rather is entitled to psychological services for the above treatment plan at the rate of $100.00 per hour.

43The applicant claims entitlement to the outstanding balance $372.06 ($1,682.06 less $1,310.00 approved) of the treatment plan for psychological services dated March 18, 2024. The plan recommends 6 x 1.25-hour sessions with a social worker, at a rate of $149.61 per hour, document support activity for $360.00 and completion of an OCF-18 for $200.00.

44The respondent approved 6 x 1.25-hour sessions at the rate of $100.00 per hour for a social worker rather than the proposed rate for a psychologist of $149.61 per hour. The respondent also approved the document support activity for $360.00 and the completion of an OCF-18 for $200.00. The applicant must prove that the higher hourly rate is reasonable on a balance of probabilities.

45The Guideline does not specify the 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.

46The applicant submits that the social worker is entitled to the hourly rate of $149.61, because the insurer lacks medical competence to unilaterally determine appropriate rates, and that since there is no guideline for these rates the ambiguity should favor the consumer.

47The respondent submits that the provider is a social worker, that the Guideline does not list social workers and that the $100.00 hourly rate approved is consistent with other Tribunal decisions. The respondent further submits that the provider did not respond to an invitation to negotiate the rate and that by incurring the treatment the applicant essentially agreed to it.

48I find that the applicant has not proven on a balance of probabilities that a social worker for this treatment plan should be paid at rate higher than that approved by the respondent. The applicant did not provide any evidence in support of his submission that a social worker should be paid at a rate of $149.61 and the provider did not respond to the insurer’s invitation to negotiate the rate approved. The rate provided by the respondent of $100.00 is reasonable in light of the rates in the Guidelines and previous Tribunal cases, and the applicant has not met his onus to establish that the social worker should be paid at a higher rate.

49Accordingly, I find on a balance of probabilities that the applicant is not entitled to the balance of the treatment plan.

Interest

50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits have been unreasonably withheld or delayed, there is no interest payable.

Award

51The 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.

52I find that the applicant is not entitled to a special award since no benefits were withheld or delayed.

ORDER

53For the reasons set out above, I find that:

i. I find that the applicant is not entitled to the treatment plan for physiotherapy services dated August 17, 2023.

ii. I find the applicant is not entitled to the balance of the plans in dispute for the treatment plan for psychological services dated August 21, 2023 and March 18, 2024.

iii. The respondent is not liable to pay an award under section 10 of Reg. 664.

iv. As there are no overdue payments, no interest is payable.