Canada: Psychotherapist Costs Reviewed In A SAB Case
Case Study: Johnson v Aviva Insurance

Case Study: Johnson v Aviva Insurance¹

The applicant, Johnson, was involved in an automobile accident in 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule (the "Schedule"). The respondent, Aviva Insurance Company of Canada (the "Insurer"), denied psychotherapy benefits. Johnson (the "Applicant") applied to the Licence Appeal Tribunal (LAT) for resolution of the dispute.

Of the issues adjudicated in this decision, the LAT explored the appropriate rate payable to psychotherapists in the context of statutory accident benefits. Psychotherapists are oft disputed as either regulated professionals or unregulated professionals.² In Johnson v Aviva Insurance Company of Canada, 2023 CanLII 77315 (ON LAT), the Tribunal held registered psychotherapists are to be treated as regulated professionals per the Professional Services Guideline (the "Guideline").³

Factual Background

The benefits sought and denied were psychological services proposed by medical assessments in an OCF-18 "treatment plan" in the amount of $1,026.36 ($2,290.32 less $1,263.96 approved),
The Adjudicator concluded the Applicant was entitled to receive funding for the psychological services. The Adjudicator outlined that for payment for a treatment and assessment plan under s. 15 and 16⁴ of the Schedule the Applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary because of the subject accident. In successfully demonstrating reasonability and necessity, an applicant should identify the goals of treatment and how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

In Johnson, Medical assessments and responding insurer independent medical examinations resulted in the Applicant being approved for a 2018 treatment plan for $2,051.44. The subject dispute arose upon renewal of those services in 2019. A new treatment plan (below)⁵ was submitted to the Insurer identifying a treating psychotherapist as the healthcare professional (rounded):

The Insurer indicated that for Line 1, it would only pay a rate of $58.19 per hour for counselling services. The $58.19 rate is that which is prescribed for unregulated professions in the Guideline. Further, the Insurer denied Lines 2, 3, and 4, stating the amount cannot exceed $598.44. This meant the remainder would not be covered by the Insurer.

Position of the Parties

The Insurer submitted that Line 1 of the disputed OCF-18 is not specific regarding who ought to be the service provider and whether the service provider ought to be a registered psychologist, psychotherapist, or "other" service provider. The Insurer further relied upon the Guideline which prescribed a maximum rate of $58.19 for "unregulated professions." The Insurer adopted the position that registered psychotherapists are an unregulated profession.⁶ The Insurer therefore took the position that since the proposed treater was a psychotherapist, they were compelled to default to the rate for unregulated professionals prescribed in the Guideline: $58.19.

The Applicant argued that that a registered psychotherapist should be paid at the rate of a regulated professional...

The Applicant argued that that a registered psychotherapist should be paid at the rate of a regulated professional and cited to the LAT's decision in J.V. v. Intact Insurance Company (ON LAT),⁷ where the Tribunal found that a registered psychotherapist was entitled to be paid at the same hourly rate as a psychologist or a psychological associate as a result of her credentials, specialized training and experience.

The Decision at the LAT

Adjudicator Bernard Trottier found in favour of the Applicant. First, the Adjudicator agreed that psychotherapy is a regulated profession. The Adjudicator cited the oversight of psychotherapists by the College of Registered Psychotherapists of Ontario and the extensive training required to earn and maintain the designation as factors which contribute to designating psychotherapists as regulated professionals. Further, the Adjudicator found that the incurring of costs to maintain the designation further attributed to a role that should appropriately be designated as a regulated profession.⁸

Second, psychotherapy progress reports completed by two separate psychotherapists were submitted by the Applicant prior to the Applicant's submission of the disputed treatment plan. These reports recommended renewal of psychotherapy. In the submitted OCF-18 treatment plan, there is no box which can be checked for "psychotherapist" however, the Adjudicator noted psychotherapy under the supervision of psychological associate would justify a regulated professional rate prescribed by the Guideline, which in this case was proposed to be $130.00 per hour.

Lastly, given that the Insurer approved the psychological treatment (with only quantum being in dispute), the Adjudicator noted that Lines 2, 3, and 4 regarding planning service and documentation support activities related to the psychological treatment were both reasonable and necessary. The Insurer agreed but disputed the quantum. The Adjudicator concluded that the Insurer's explanation for disputing the quantum was insufficient. The Insurer's explanation was simply that the Applicant can "call the provider to discuss the rate" and that the denial was "per Section 44." The Adjudicator found that the explanation provided did not describe in sufficient detail why the line items were being partially denied. The disputed amount of the treatment plan for psychological services was thus held to be reasonable and necessary on a balance of probabilities.

Footnotes

1. Johnson v Aviva Insurance Company of Canada, 2023 CanLII 77315 (ON LAT)
2. See for example: 17-006851 v RBC Insurance Company, 2019 CanLII 63334 (ON LAT), where the dispute focused on the regulation status of a social worker who was also a psychotherapist in good standing with the College of Registered Psychotherapists.
3. A guideline published by the Financial Services Regulatory Authority of Ontario (FSRA) which establishes the maximum expenses payable by auto insurers various health care professions and providers.
4. Sections 15 and 16 of Statutory Accident Benefits Schedule, 2010, O. Reg. 34/10 enumerates medical and rehabilitation benefits that are payable to an insured, subject to reasonability and necessity.
5. Johnson v Aviva Insurance Company of Canada, 2023 CanLII 77315 (ON LAT), [Johnson] at para 14,
6. Johnson at para 17.
7. J.V. v. Intact Insurance Company, 2019 CanLII 130366 (ON LAT)
8. Johnson at paras 18â€"19.

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