Citation: Hu v. Aviva Insurance Company of Canada, 2026 ONLAT 25-000626/AABS

Licence Appeal Tribunal File Number: 25-000626/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:

Bing Nuan Hu

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Nadia Mauro

APPEARANCES:

For the Applicant: Ryan Olson, Paralegal

For the Respondent: Jessica Bacopulos, Counsel

HEARD: By way of written submissions

OVERVIEW

1Bing Nuan Hu, the applicant, was involved in an automobile accident on January 22, 2024, 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:

1. Is the applicant entitled to $384.44 ($3,909.56 less $3,525.12 approved) for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan (“OCF-18”) dated August 6, 2024?

2. Is the applicant entitled to $1,396.08 ($3,701.74 less $2,305.66 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic, in an OCF-18 dated July 29, 2024?

3. Is the applicant entitled to $224.44 ($3,749.56 less $3,525.12 approved) for physiotherapy services, proposed by Total Recovery Rehab Centre in an OCF-18 dated January 14, 2025.

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

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

RESULT

3The applicant is partially entitled to the treatment plans for physiotherapy services, plus interest.

4The applicant is not entitled to the unapproved portion of the treatment plan for psychological services.

5The applicant is not entitled to an award.

ANALYSIS

The treatment plans for physiotherapy services

6The applicant has proven, on a balance of probabilities, that the unapproved portions of the treatment plans for physiotherapy services are reasonable and necessary, in part.

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 OCF-18 completed by physiotherapist, Mr. Ahmed Afifi, submitted on August 6, 2024, sought funding for the following:

1. Assessment (examination), total body (reassessment) in the amount of $200.00;
2. 16 sessions of therapy, multiple body sites (physiotherapy) in the amount of $1,596.00;
3. 16 sessions of therapy, multiple body sites (active therapy) in the amount of $798.08;
4. 16 sessions of therapy, multiple body sites (massage therapy) in the amount of $931.04;
5. Documentation support activity (progress report) in the amount of $224.44; and
6. Provider travel time, provider to treatment in the amount of $160.00

9The Explanation of Benefits (“EOB”), dated August 8, 2024, indicates that the unapproved portion of the OCF-18, submitted on August 6, 2024 are Line 5: Document Support Activity (progress report) and Line 6: Provider travel time, provider to treatment.

10The OCF-18 completed by physiotherapist, Mr. Ahmed Afifi, submitted on January 14, 2025, sought funding for the following:

1. Assessment (examination), total body (reassessment) in the amount of $200.00;
2. 16 sessions of therapy, multiple body sites (physiotherapy) in the amount of $1,596.00;
3. 16 sessions of therapy, multiple body sites (active therapy) in the amount of $798.08;
4. 16 sessions of therapy, multiple body sites (massage therapy) in the amount of $931.04;
5. Documentation support activity (progress report) in the amount of $224.44.

11The EOB, dated January 22, 2025, indicates that the unapproved portion of the OCF-18, submitted on January 14, 2025 is Line 5: Document Support Activity (progress report).

12The applicant submits that the remaining unapproved portions of both OCF-18s are reasonable and necessary because the progress report is crucial for the ongoing adjustment of his file.

13The respondent relies on its EOBs, dated August 8, 2024 and January 22, 2025, wherein it took the position that a formal physiotherapy progress report is not required and that the completion of an OCF-18 would provide updated progress information. While I am not bound by Tribunal decisions, I am persuaded by the decision in Wang v. Aviva General Insurance, 2025 CanLII 99905 (ON LAT), relied on by the applicant, wherein it was held that the progress report served as a primary tool to justify further treatment and for the ongoing adjustment of the file.

14While the respondent’s position is that the completion of an OCF-18 would provide updated progress information, I disagree. Although the OCF-18, dated August 6, 2024, provides a few sentences in the additional comments section that discuss the applicant’s progress, I find that this is not equivalent to a formal progress report opining on the need and breadth of further treatment. I note that the OCF-18, dated January 14, 2025, does not provide any “additional comments” on the applicant’s progress. I also find the fact that the respondent approved the physiotherapy treatment in both OCF-18s further supports the reasonableness and necessity of a progress reports in order for the respondent to adjust the file accordingly.

15With respect to Line 6: provider travel time, listed on the OCF-18 dated August 6, 2024, there is no requirement in the Schedule for an insurer to pay for the travel time of treatment providers. Section 25(4) of the Schedule states that the insurer shall pay reasonable expenses incurred by or on behalf of an insured person for authorized transportation expenses incurred in transporting the insured person to and from an assessment or examination. There is no obligation for the respondent to pay for the treating practitioner’s travel expense. The applicant does not make submissions with respect to provider travel time. Therefore, I find that the applicant has not established this portion of the OCF-18 is reasonable and necessary.

16In sum, I find that the applicant has established, on balance of probabilities, that the Line 5: document support activity (progress report) on both OCF-18s, in the amount of $224.44, are reasonable and necessary. Conversely, I find that the applicant has not established, on a balance of probabilities, that Line 6: provider travel time sought in the OCF-18, submitted on August 6, 2024, is reasonable and necessary.

The treatment plan for psychological services

17The applicant has not proven, on a balance of probabilities, that the unapproved portions of the treatment plan for psychological services are reasonable and necessary.

18The OCF-18 completed by psychologist Dr. Sedigheh Naisi, submitted on July 29, 2024, sought funding for the following:

1. 14 sessions of therapy, mental health and addictions (psychology treatment) in the amount of $2,094.54 ($149.61/hour);
2. 14 sessions of brokerage, service (communication with others) in the amount of $523.60;
3. 14 sessions of planning, service (ongoing evaluation and modification of treatment) in the amount of $523.60;
4. Progress report in the amount of $360.00; and
5. Documentation support activity for claim form in the amount of $200.00

19The applicant submits that Ms. Wai Yan Liu, registered psychotherapist, should be paid the hourly rate for the therapy services in the amount of $149.61 rather than the approved $99.75. The applicant relies on the Tribunal decision in J.V. v. Intact Insurance Company, 2019 CanLII 76995 (ON LAT) wherein it was held that 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. The applicant further relies on the Tribunal decision in A.S. v. Aviva Insurance Company, 2020 CanLII 12787 (ON LAT) (“A.S”), where it was held that the treating psychotherapist was performing the same services as a psychologist and was thus entitled to payment at the same rate of a psychologist at $149.61 per hour.

20The respondent submits the OCF-18 was partially approved in the amount of $2,305.66. The respondent submits that it partially approved the treatment in the amount of $99.75 per hour because unlike psychologists, the Professional Services Guideline (the “Guideline”) does not prescribe an hourly rate for unregulated providers such as psychotherapists. It is the respondent’s position that the hourly rate of unregulated service providers is to be determined by the parties involved.

21I am not bound by Tribunal decisions; however, I distinguish the cases relied on by the applicant because in the present matter, the applicant has neither directed me to evidence that would support that the applicant would be receiving equivalent treatment from a psychotherapist as she would from a psychologist warranting payment at the rate of a psychologist, nor has the applicant provided the credentials of the treating practitioners for the proposed treatment plans to confirm the range and breadth of their experience. More importantly, the applicant has not provided any of the treating practitioner’s credentials as it would relate to the proposed treatment plans.

22The applicant also takes the position that Ms. Liu speaks the same language as him and therefore negates the need for an interpreter, “minimizing the treatment provided”. However, I am unpersuaded that this in some way establishes a psychotherapist should be paid at the same rate as a psychologist. Ms. Liu has the ability to provide psychotherapy services – regardless of whether she is remunerated at a higher rate – in either language. In my view, it would be contrary to the consumer protection mandate of the Schedule to administer therapy services at a higher fee solely because the service is provided in a different language.

23The respondent also submits that the unapproved portions of the treatment plan, in addition to the discrepancy in the hourly rate of the treatment providers, related to brokerage services and planning services. The respondent submits that the applicant has failed to put forth any evidence that establishes the reasonableness and necessity of these fees.

24The Guideline states that “insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rate, or the maximum fees payable for completing fees, beyond what is permitted under the [Guideline].” I agree with the respondent’s position that the brokerage services and planning services relate to professional services and would have the result of increasing the hourly rate beyond what is permitted under the Guideline. The applicant has not provided any submissions or directed me to evidence as to why these services would not be captured in the hourly rate of the service provider. Therefore, I find these goods and services are not reasonable and necessary.

25Given the foregoing, I find that the applicant has not established, on a balance of probabilities, that the unapproved portions of the treatment plan for psychological services is reasonable and necessary.

Interest

26The applicant is entitled to interest on any overdue benefits pursuant to s. 51 of the Schedule.

Award

27The 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.

28The applicant must prove, on a balance of probabilities, that the respondent unreasonably withheld or delayed payments or that there was unreasonable conduct by the respondent. More specifically, the applicant must prove that benefits were unreasonably withheld or that there was conduct that was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate in addressing the issues in dispute.

29The applicant argued, citing Liberty Mutual Insurance Company v. Molly R. Persofsky, 2003 ONFSCDRS 9, that the respondent ‘categorically ignored’ the medical records of the applicant’s treating practitioners and assessors and the applicant is vulnerable and has sustained serious injuries as a result of the accident.

30Despite this, the applicant does not direct me to any evidence to substantiate that the respondent ‘categorically ignored’ his medical evidence, nor am I pointed to evidence to suggest the respondent took advantage of the applicant’s vulnerabilities.

31For these reasons, I find that the applicant has not proven on a balance of probabilities that the respondent acted unreasonably in its denials, such that the respondent’s conduct rose to a level that would substantiate the request for an award. As such, I do not find that the applicant is entitled to an award.

ORDER

32I find that:

1. The applicant is partially entitled to the unapproved portion of the treatment plan for physiotherapy services, submitted on August 6, 2024, plus interest;
2. The applicant is not entitled to the unapproved portions of the treatment plan for psychological services, submitted on July 29, 2024;
3. The applicant is entitled to the unapproved portion of the treatment plan for physiotherapy services, submitted on January 14, 2025; and
4. The respondent is not liable to pay an award.