Neutral Citation: 1995 ONICDRG 62
File No. A-002468
ONTARIO INSURANCE COMMISSION
BETWEEN:
WAYNE HANNON
Applicant
and
CO-OPERATORS GENERAL INSURANCE COMPANY
Insurer
DECISION
Issues:
The Applicant, Wayne Hannon, was injured in a motor vehicle accident on December 10, 1991. He applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 6721. He and the Insurer disagreed about the payment of certain expenses under the Schedule. The parties participated in mediation but were unable to resolve their disputes and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this hearing is:
Is the Applicant eligible to receive reimbursement of certain expenses under section 6 of the Schedule?
The Applicant also claims interest on any amounts owing, and his expenses incurred in the hearing.
Result:
The Applicant is entitled to $399.52 in transportation expenses. Since $1,442.10 has been paid already, there will be a set-off of $1,042.58 with respect to the amounts owing under paragraph 2 below.
The Applicant is entitled to $3,419.85 for all chiropractic expenses to February 28, 1994 and $74.77 for prescriptions.
The Applicant is not entitled to interest, for the reasons set out herein.
The Applicant will repay to the Insurer any amount he receives from Sun Life for chiropractic treatment, which has already been paid by the Insurer.
The issue of expenses is reserved for further evidence and submissions.
Hearing:
The hearing was held in North York, on April 25, 1995, before me, K. Julaine Palmer, arbitrator.
Present at the Hearing:
Applicant: Wayne Hannon Insurer's Representative: Stephen M. Malach, Barrister and Solicitor Insurer's Officer: Susan Giffen, Claims Representative Witnesses: Wayne Hannon, Susan Giffen
The proceedings were recorded by Janice Matthew, Holley & Strauch Reporters. The parties filed 20 exhibits at the hearing.
Evidence and Findings:
As a result of the December 10, 1991 accident, Mr. Hannon received injuries which required treatment from a medical doctor and a chiropractor. He was also prescribed medication.
At the hearing, the Insurer admitted that it was responsible for payment of chiropractic invoices totalling $3,419.85. It came to this conclusion after receiving information about the supplementary health benefits Mr. Hannon held through his employment. Mr. Hannon worked for a firm of accountants which had Great West Life as its supplementary health insurer until September 30, 1992. Thereafter, the firm's supplementary health coverage was with Sun Life. Mr. Hannon had experienced some difficulty in determining his entitlement to reimbursement from Sun Life. He could not submit his chiropractic expenses directly to Sun Life, but had to deal with an administrator in his employer's office. In addition, he was reimbursed through his employer, not directly from the insurance company.
Transportation to Chiropractic and Doctors' Appointments
During the time that these trips for chiropractic treatment and doctors' appointments were made, Mr. Hannon was working for the accounting firm at its Bolton office. He testified that the distance from his home near Shelburne to the office was approximately 90 kilometres. His chiropractor's office was in Bolton, about two kilometres from the accounting office. Mr. Hannon testified that he usually went for chiropractic treatment on his way to work.
The Insurer and Mr. Hannon disagreed about how much mileage should be paid for attending at chiropractic treatments. For trips taken between May 4 and October 30, 1992, Mr. Hannon claimed 184 kilometres per trip, 90 kilometres each way from his home to the office, plus two kilometres each way between the office and the chiropractor. He reduced each trip by an allowance of 45 kilometres for "personal travel" which he stated related to travel to visit a rental property. However, Mr. Hannon further testified that he did not visit this rental property and the amount which was included was hypothetical. The Insurer paid 95 kilometres for 69 trips for chiropractic appointments over that period. It decided to pay one-half of Mr. Hannon's regular distance to work, plus five kilometres to account for the return travel between his office and the chiropractor. I find that the only transportation expense which qualifies as a "reasonable expense resulting from the accident" under the Schedule is the four kilometres round trip from the chiropractic office to his office. Travelling those four kilometres was made necessary by the treatment which Mr. Hannon received for the injuries resulting from the accident.
Similarly, with respect to doctors' appointments, Mr. Hannon testified that his doctor's office is located in Heart Lake, about 25 kilometres from his workplace. Mr. Hannon submitted claims for ten visits to his doctor over the period December 1, 1992 to June 24, 1993. He also filed a list of work days missed because of severity of symptoms arising out of the accident. Two of the dates when Mr. Hannon testified he was unable to work coincide with dates of medical appointments. Consequently, I allow two trips at 224 kilometres and eight trips at 50 kilometres for this travel. Mr. Hannon explicitly testified that even if he had to attend at a client's premises on the day of a medical appointment, he would travel the distance to the doctor's office (112 kilometres) in any case.
I further find that the rate of 22 cents per kilometre paid to all Co-operator's insureds at this time is the proper rate of payment. I make this finding in the absence of any evidence from Mr. Hannon which would establish that a higher rate was called for in his particular circumstances, or was negotiated by him at the time his policy contract came into effect. Accordingly, for 71 trips of four kilometres at 22 cents per kilometre, the Applicant is owed $62.48. For a further 171 trips, $150.48 is owed, following the same formula. $186.56 should be paid for travel to medical appointments.
Mr. Hannon testified that he often worked at clients' premises and did not begin his day at the office in Bolton. I find that although he first indicated this to the Insurer by letter of January 25, 1993, he never responded to the Insurer's request, made in its letter of February 22, 1993, to provide a "schedule of times of chiropractic appointments and times and locations of your business related appointments so that we may give this matter further consideration". Mr. Hannon gave no evidence to the Insurer or to me which would enable me to adjust the mileage award to more accurately reflect the exact distances which he travelled for treatment. In fact, Mr. Hannon testified that perhaps on as many as half his chiropractic visits, he might have begun his work day at clients' premises, away from the Bolton office. Rather than fail Mr. Hannon's claim entirely for lack of proof with respect to reasonable travel expense for half of his chiropractic visits, in my judgment, it is fair to award him the four kilometres travelled between his office and the chiropractor.
Time Limits:
In its submissions, the Insurer claimed that some of Mr. Hannon's claims for transportation expense had been brought beyond the time limits set out in section 26 of the Schedule. The travel expense to attend chiropractic treatments up to August 31, 1992 was partially paid by the Insurer on September 25, 1992. That is the date of the Notice of Assessment of Claim, signed by Susan Giffen, claims representative. Mr. Hannon admitted he received this form. A mediation with respect to these mileage claims took place between July 29 and September 2, 1992.
I find that these claims, partly paid about September 25, 1992, are the subject of an Application for Appointment of an Arbitrator dated September 30, 1994 and received at the Commission on October 4, 1994. The Insurer may be correct that Mr. Hannon's application is out of time, if the assessment of claim form dated September 25, 1992 was received by Mr. Hannon before September 30 or October 4, 1992. However, in this case I heard no argument with respect to the appropriate rule which should be used to determine the date of receipt of the assessment of claim form. Nor did I hear any evidence of the date of its actual receipt. As well, the dates of attendance for chiropractic treatment between May 4 and October 30, 1992 were not particularized by Mr. Hannon, so that the number of trips before October 4, 1992 is impossible for me to determine. Section 33 of the Insurance Act, which discusses service of documents and section 43 of the Dispute Resolution Practice Code are of no assistance to me in the absence of proof of mailing. Accordingly, I order $62.48 to be paid on account of those trips.
The following table summarizes the claims, the amounts paid by the Insurer, and the amount which I order to be paid for transportation expenses claimed by the Applicant to chiropractic treatment and doctors' appointments. The Insurer has already paid more than three and a half times the required amount.
| Dates | No. of Trips | Km Claimed Per Trip | Amount Claimed (@ $.31) | Km/Trip Allowed by Insurer | Amount Paid (@ $.22) | Amount Ordered |
|---|---|---|---|---|---|---|
| May 4 - Oct.30/92 | 71 | 139 | $ 3,059.39 | 95 | $1,442.10* | $ 62.48 |
| May 4 - Oct.30/92 | 171 | 139 | $ 7,368.39 | 0 | $150.48 | |
| Dec.10/92-June 24/93 | 10 | 179** | $ 571.81 | 0 | $186.56 | |
| TOTAL: | $10,999.59 | $1,442.10 | $399.52 |
- 69 trips ** except 2 trips of 224 km
Chiropractic Treatment:
The Insurer admits that it should pay $3,419.85 for chiropractic treatment taken by the Applicant up to February 28, 1994.
Both the Applicant and the Insurer submitted evidence with respect to the payment of chiropractic expense. The dispute arose because of Mr. Hannon's entitlement to extended health coverage benefits through his employment. The Schedule provides at section 9(1) that:
The insurer will not pay any portion of an expense referred to in subsection 6(1)... for a service that is reasonably available to the insured person under any insurance plan or law or under any other plan or law that will pay the expense.
The Applicant testified that until October 1, 1992, he had extended health coverage with Great West Life Insurance through his employer's group policy. Thereafter, his employer's policy was with Sun Life.
It appears that Mr. Hannon may be entitled to reimbursement from Sun Life of up to $500.00 of the claims which Co-operators now admits it will pay. The Insurer does not claim a reduction of $500.00 in the claim, but requests Mr. Hannon to repay it that sum, if and when he receives it from Sun Life. I order that he do so.
I am satisfied that Mr. Hannon had coverage under an extended health insurance plan through his employment, until his employment ended in March 1994. Neither party to this arbitration raised the question of the interaction of sections 6(7) and 9(1) of the Schedule in this case. Section 6(7) provides:
(7) In case of a dispute concerning an expense described in clause (1)(a), (b) or (d), the insurer will pay the expense pending resolution of the dispute.
I am concerned that applicants in some cases might be unable to pursue treatment referred to in section 6(1)(a) of the Schedule because of an insurer's improper reliance on section 9(1). I make no comment with respect to the general procedure which I believe should be followed in the case of such a dispute, except to state that, in this particular case, I found that some amounts for chiropractic treatment were reasonably available to Mr. Hannon under other policies of insurance.
In addition, and more importantly, in this case the Insurer has received no medical or chiropractic report (Form 4) with respect to the Applicant and his condition after a report dated July 23, 1992, which was received by the Insurer on September 25, 1992. No further reports were received, despite the fact that the July report stated that an updated report would follow in September 1992 and despite the Insurer's request that the Applicant provide it with a further report or sign a consent, so that it could request reports directly, itself.
I note that, throughout most of this period, the Applicant made no claim under Part IV for weekly income benefits, so the provisions of section 23 of the Schedule (for an examination at the request of the Insurer) did not apply. However, in my view, the Insurer was still entitled to be satisfied that the Applicant's need for continued chiropractic treatment "resulted from an accident" of December 10, 1991 and that these treatments were a necessary expense, as is set out in section 6(4) of the Schedule.
Since the Insurer admits it is liable to pay, it is not necessary for me to decide that point.
Prescription Expenses:
The Insurer admitted that it would pay prescription invoices totalling $74.77 submitted by the Applicant.
I repeat my comments with respect to the interaction of sections 6(7) and section 9(1) of the Schedule with respect to the Insurer's payment of this claim.
Interest:
In his Application for Appointment of an Arbitrator, Mr. Hannon requested "interest from 30 days subsequent to the date of payment by the insured". However, section 24(1) of the Schedule calls for amounts payable under Part II to become overdue "if not mailed or otherwise delivered by the insurer within 30 days after it has received a completed application for statutory accident benefits".
In Mr. Hannon's case, it is impossible for me to determine when "a completed application for statutory accident benefits" was received by the insurer with respect to each claim for chiropractic treatment. Mr. Hannon submitted a great number of claims for chiropractic treatment: some of these may have been appended to his Application for Appointment of an Arbitrator. However, most of these applications are neither signed nor dated, as Form 2 under the Schedule requires. Hence, it is impossible for me to determine, in the absence of any other evidence, when these completed applications (if indeed they were complete) were received. Although a representative of the Insurer testified, she was not asked by Mr. Hannon to confirm the dates upon which his various claims were received by the insurance company.
Expenses:
Mr. Hannon has requested that "costs be assessed against the Insurer". The Insurer expressly requested that I delay any finding with respect to the payment of expenses in this proceeding until it had an opportunity to make submissions to me with respect to offers of settlement of these claims put to the Applicant.
In 1993, the Insurance Act, R.S.O. 1990, c.I.8, (the "Act") was amended at section 282 (11.2) to allow an arbitrator to "award an amount to be paid by the insured person to the insurer that does not exceed the amount assessed against the insurer in respect of the arbitration under section 14".
Section 282(11.2) allows an arbitrator to make such an award "if an insured person commences an arbitration that, in the opinion of the arbitrator, is frivolous, vexatious or an abuse of process".
The ability to make an award of expenses is a discretion conferred upon an arbitrator. I am withholding the exercise of my discretion with respect to expenses and repayment of the Insurer's assessment pending further evidence and submissions from the parties. In hearing from the parties with respect to this point, I ask them to direct their remarks toward the role that an offer of settlement should play in the provision of expenses to an applicant and in the repayment of an insurer's assessment, if any.
I urge the parties to come to their own resolution with respect to the question of expenses, if possible.
Conduct of Applicant:
The Insurer's evidence in this matter proved that the Applicant is inclined to submit an Application for Additional Accident Benefits (Form 2) for each single attendance at a chiropractor, medical doctor, prescription, etc. He has not completed the form on a regular basis, for example bi-weekly or monthly, nor has he attached original receipts or described the services or the names of the service provider on the approximately 45 lines allowed on the form.
Form 2 expressly advises in its instructions that "this claim form may be submitted as often as necessary, as expenses arise." The form directs "This form should be used to claim expenses related to the injury and not covered under any law or any other insurance plan."
Mr. Hannon testified that it was convenient for him to submit each expense on a single application. He claimed this was necessary because of his inability to concentrate following the accident. I accept that this might be a valid reason, in a proper case, to submit single items to an insurer. However, Mr. Hannon did not mail the applications individually or in small groups, but instead, batched them in groups and forwarded sometimes more than 30 applications at one time.
Since his accident, Mr. Hannon has requested six mediations at the Commission, submitted three Applications for Appointment of an Arbitrator (which were heard together by me), and brought actions with respect to other benefits before the Small Claims Court in Orangeville.
I am concerned about the multiplicity of proceedings regarding Mr. Hannon's claims, many of which concern supplementary medical expenses of small amounts. I make no order in this proceeding with respect to the manner in which Mr. Hannon should submit his claims to the Insurer or his applications to the Commission in the future. However, I wish to indicate that, in my view, if Mr. Hannon continues to pursue multiple small claims, he risks a finding by me, another arbitrator, or a Small Claims Court Judge that this manner of proceeding is an abuse of process.
Order:
The Applicant is entitled to $399.52 in transportation expenses. Since $1,442.10 has been paid already, there will be a set-off of $1,042.58 with respect to the amounts owing under paragraph 2 below.
The Applicant is entitled to $3,419.85 for all chiropractic expenses to February 28, 1994 and $74.77 for prescriptions.
The Applicant is not entitled to interest, for the reasons set out herein.
The Applicant will repay to this Insurer any amount he receives from Sun Life for chiropractic treatment, which has already been paid by this Insurer.
The issue of expenses is reserved for further evidence and submissions, if this issue cannot be resolved between the parties.
June 5, 1995
K. Julaine Palmer Arbitrator