Neutral Citation: 2000 ONFSCDRS 123
FSCO A99-000934
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
LISA M. DANIELS
Applicant
and
LUMBERMENS MUTUAL CASUALTY COMPANY
Insurer
REASONS FOR DECISION
Before:
William J. Renahan
Heard:
By telephone conference call on June 6, 2000.
Appearances:
David Daniels for Ms. Daniels
Harry P. Brown for Lumbermens Mutual Casualty Company
Issues:
The Applicant, Lisa M. Daniels, was injured in a motor vehicle accident on September 24, 1997. She applied for and received statutory accident benefits from Lumbermens Mutual Casualty Company ("Lurnbennens"), payable under the Schedule.1 Lumbermens refused to pay transportation expenses for medical treatment. The parties were unable to resolve their disputes through mediation, and Ms. Daniels applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Lisa Daniels entitled to transportation expenses for automobile travel to medical appointments of less than 50 kilometres pursuant to paragraph 14(2)(g) and subsection 14(5) and (6) of the Schedule?
Is either party entitled to expenses of the arbitration proceeding?
Result:
Lisa Daniels is entitled to transportation expenses for automobile travel to medical appointments of less than 50 kilometres.
The issue of entitlement to expenses of the arbitration proceeding is deferred.
EVIDENCE AND ANALYSIS:
Lisa Daniels is now 16 years old. Since the motor vehicle accident of September 24, 1997, she has travelled about 3,000 kilometres to over 200 medical appointments. She mostly travels with her mother in her mother's vehicle. She has travelled about 20 times with her father in his vehicle. Lisa Daniels does not drive or own an automobile.
The relevant provisions in the Schedule governing entitlement to transportation expenses to attend medical appointments are set out in section 14 as follows:
- (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit.
(2) The medical benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for,
(g) transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant;
(5) Subject to subsection (6), the insurer is not liable to pay a medical benefit under clause (2) (g) for expenses related to transportation unless the expenses are authorized by, and are calculated by applying the rates set out in, the Transportation Expense Guidelines published in The Ontario Gazette by the Ontario Insurance Commission, as they may be amended from time to time.
(6) The insurer is not liable to pay a medical benefit under clause (2) (g) for expenses related to the first 50 kilometres of transportation in the insured person's automobile to and from a treatment session.
Under Section 268.3 of the Insurance Act, the Superintendent of Financial Services may issue guidelines on the interpretation and operation of the Schedule, and the guideline shall be considered in any determination involving the interpretation of the Schedule.
The Superintendent has issued a guideline with respect to transportation expenses ("the Guideline"). The provisions of the Guideline which I consider relevant and am required to consider are as follows:
Use of Automobiles
The insurer is liable to pay a mileage expense for transportation of the insured person and their aide or attendant, to and from treatment sessions, counselling sessions, training sessions, examinations and assessments using the insured person's automobile, excluding the first 50 kilometres of each trip. This applies to minors who are driven to treatment sessions, examinations or assessments.
For the purpose of these guidelines, the "insured person's automobile" includes any automobile owned or leased by the insured person or any other automobile to which the insured person has access.
The rate that is to be used to calculate transportation expenses for the use of the insured person's automobile is twenty two cents per kilometre (224 km) travelled.
Under the Schedule, expenses for transportation to and from treatment are excluded from coverage for the first 50 kilometres "in the insured person's automobile." The first question is what is the meaning of "in the insured person's automobile."
Lisa Daniels is the "insured person." She does not own or operate an automobile. If coverage was excluded for transportation in any automobile the words "in the insured person's automobile" are unnecessary. In my view, the words "insured person's automobile" mean an automobile in which the insured has an interest, such as an ownership or leasehold interest. Lisa Daniels has no interest in her mother's or her father's automobiles and I find therefore that the exclusion in subsection 14(6) of the Schedule, without reference to the Guideline, does not apply to her because she did not travel in her automobile.
The next question is whether the Guideline enlarges the exclusion to include Ms. Daniels, and if it does, what are the consequences?
The Guideline extends the definition of "insured person's automobile" to "any other automobile to which the insured person has access." In my view, a person has "access" to an automobile if the person is allowed by the owner or lessor to use it. Accordingly, any passenger in an automobile has access to the automobile and the exclusion is extended to any person who travels to treatment by automobile. This interpretation goes beyond the exclusion set out in the Schedule and makes the words "in the insured person's automobile" meaningless. The Guideline does not prevail over the words of the Schedule. I need only consider it. Here, where the Guideline would make the words of the Schedule meaningless, I can ignore the words "any other automobile to which the insured person has access."
The Guideline also provides that coverage for transportation expenses and the exclusion for the first 50 kilometres of each trip "applies to minors who are driven to" treatment. It is not clear why the Guideline would exclude coverage for the first 50 kilometres to minors who are driven to treatment but not exclude coverage to adults who are driven to treatment. Lumbermens submitted that the Guideline refers to minors who are driven by their parents. However, the Guideline does not say this. Again, this exclusion goes beyond the exclusion set out in the Schedule. I do not see a policy reason for extending the exclusion to minors who are driven by someone else and not to adults who are driven by someone else. Accordingly, I find that the Guideline does not limit Ms. Daniels' right to recover transportation expenses.
Accordingly, the exclusion for transportation expenses for trips of less than 50 kilometres to medical treatment under subsection 14(6) does not apply to Lisa Daniels and she is entitled to transportation expenses for automobile travel for such trips.
EXPENSES:
If the parties cannot agree on the issue of entitlement of expenses of this arbitration proceeding, either party may contact the case worker to arrange a date for me to determine the issue.
July 5, 2000
William J. Renahan Arbitrator
Date
Neutral Citation: 2000 ONFSCDRS 123
FSCO A99-000934
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
LISA M. DANIELS
Applicant
and
LUMBERMENS MUTUAL CASUALTY COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Lisa Daniels is entitled to transportation expenses for automobile travel to medical appointments of less than 50 kilometres.
The issue of expenses of the arbitration proceeding are deferred.
July 5, 2000
William J. Renahan Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.