LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards
Tribunals Ontario
Tribunal File Number: 16-000009/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
J. H.
Applicant
and
Intact Insurance Company
Respondent
DECISION
Adjudicator: Cynthia Pay
Representatives:
For the Applicant, Ms. Joelle Sears-Briggs, counsel
For Intact Insurance Company, Philippa Samworth and Shirline Apiou, counsel
Held in writing: July 29, 2016
Issue:
Is the Insurance Company required to pay for mileage expenses for the Applicant’s service providers in the treatment plans under dispute under the Statutory Accident Benefits Schedule?
Decision:
The Insurance Company is not required to pay for the mileage expenses of the Applicant’s service providers in the treatment plans in dispute.
Introduction:
The Applicant, J. H. was injured in an automobile accident on February 14, 2012 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The parties confirm in their Agreed Statement of Fact that the Applicant sustained a catastrophic impairment in this accident.
The Applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) regarding the denial of mileage expenses claimed by health care providers for travel to and from the Applicant’s home.
At the case conference and in their Agreed Statement of Fact the parties agreed that the following amounts and treatment plans are in dispute:
a) $1,058.75 (OCF-18 in the amount of $7,405.18 dated January 21, 2015);
b) $96.25 (OCF-18 in the amount of $1,206.01 dated January 30, 2015);
c) $1,056 (OCF-18 in the amount of $5,922.46 dated May 26, 2015);
d) $1,588.04 (OCF-18 in the amount of $7,829.94 dated November 9, 2015);
e) $57.63 (OCF-18 dated in the amount of $3,524.53 dated November 30, 2015);
f) $673.75 (OCF-18 in the amount of $5,298.97 dated January 5, 2016); and
g) Interest on any overdue benefits.
The parties submit in their Agreed Statement of Fact that the Insurer paid for the time for travel of the service provider proposed on each treatment plan at the maximum hourly rate for professional services pursuant to the Professional Services Guideline.
The Insurance Company requests an Order that the Applicant pay costs under Rule 19 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure (the “Rules”).
The parties agree that the issue in dispute is a purely legal one, as it relates to the interpretation of the Schedule with respect to mileage claims by treatment providers, and consented to a written hearing of this issue.
Law and Analysis:
I. Is the Insurance Company required to pay for the mileage expenses for the Applicant’s service providers under the Statutory Accident Benefit Schedule?
The Applicant takes the position that his service providers should be entitled to mileage costs under the Statutory Accident Benefit Schedule. He was deemed to be catastrophically impaired as a result of his motor vehicle accident, and currently is treated by a number of service providers, including an occupational therapist and case manager. He asserts that these services are best provided to him in his home and community, and that his service providers have to travel from surrounding areas to provide this treatment because he lives in an area where access to treatment is limited. The Applicant submits that mileage costs are therefore a reasonable and necessary part of his treatment requirements.
The Insurer disagrees that they are required to pay for mileage costs under the Schedule. They submit that there is no evidence before the Tribunal regarding the Applicant’s need for treatment in the home or whether the Applicant lives in an underserviced area. They further submit that the Schedule and related Professional Services and Transportation Expense Guidelines do not require insurers to pay for the mileage costs of service providers.
Legal Framework for Medical and Other Benefit Claims
Sections 15 to 17 of the Schedule outline when medical benefits, rehabilitation benefits, and case management services must be paid. The Schedule provides for services including occupational therapy and case manager services, “as well as transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant” [s.15(1)(g)].
Section 15(2) of the Schedule regarding medical benefits states that:
Despite subsection (1), the insurer is not liable to pay medical benefits…
(b) for expenses related to goods and services described in subsection (1) rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines, other than for expenses related to the services described in clause (1)(g); or
(c) for transportation expenses other than authorized transportation expenses. O. Reg. 34/10, s. 15(2); O. Reg. 14/13, s. 1.
Similar provisions apply with respect to rehabilitation benefits [s.16(4)(a), (f)] and case manager services [s.17(2)].
The Superintendent of Financial Services has issued Guidelines regarding the interpretation of the Schedule. According to s.268.3(2) of the Insurance Act, “a guideline shall be considered in any determination involving the interpretation of the Statutory Accident Benefits Schedule”.
The Professional Services Guideline1 “establishes the maximum expenses payable by automobile insurers under the Schedule” for a range of health care services, including medical benefits and case management services. The Guideline states that “insurers are not prohibited from paying above any maximum amount or hourly rate established in the Guideline” but also that
automobile insurers are not liable to pay for expenses related to professional services rendered to an insured person that exceed the maximum hourly rates set out in the Appendix (at p.2).
- With respect to expenses, the Professional Services Guideline states that
“Expenses related to professional services” as referred to in the Schedule and the Professional Services Guideline include all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. 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 rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guideline (at p.3).
- The Transportation Expense Guideline2 provides
a framework for insurers and insured persons to determine the circumstances under which expenses related to the transportation of an insured person, and his/her aide or attendant, to and from treatment sessions…
The insurer is liable to pay for all reasonable and necessary transportation expenses for each trip that the insured person makes to and from treatment sessions…(at p.2).
- FSCO Property and Casualty – Auto Bulletin A-14/143 (“Bulletin A-14/14”) addresses the issue of mileage claims by health care service providers:
Mileage Expenses
FSCO is aware that some health care providers are submitting mileage expenses to insurers to travel to an injured accident victim’s location when providing services. Insurers are reminded that "authorized transportation expenses", as defined in the SABS, are intended to apply to expenses incurred by the insured person and an aide for travel to and from treatment sessions, subject to the Superintendent’s Transportation Expense Guideline.
Insurers are also reminded that the Superintendent's Professional Services Guideline states that:
"Expenses related to professional services" as referred to in the SABS and the Professional Services Guideline include all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. 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 rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guideline.
Both guidelines are incorporated by reference into the SABS.
Analysis
I find that the Insurer is not required to pay for the mileage costs for the Applicant’s treatment providers under the Statutory Accident Benefit Schedule.
Sections 15 to 17 of the Schedule outline the framework for payment of medical and rehabilitation benefits and case manager services. The Schedule provides specifically for “transportation for the insured person to and from treatment sessions” (emphasis added) as well as for transportation for the insured person’s aide or attendant. There is no mention of a requirement to provide transportation costs for the treatment provider.
On a plain reading of the Schedule, transportation expenses such as mileage are required to be paid only for insured persons and their aides or attendants. Transportation expenses for insured persons and their aides and attendants are specifically mentioned in the Schedule, but there is no mention of a requirement to pay for these expenses for treatment providers. This strongly suggests that transportation expenses for service providers are excluded from mandatory payments under the Schedule.
The Schedule further states that the insurer is not liable to pay medical benefits “that exceed the maximum rate or amount of expenses established under the Guidelines”, except in relation to transportation expenses for an insured person or their aide or attendant. The insurer is also not required to pay “for transportation expenses other than authorized transportation expenses” [s.15(2)(b), (c)]. Similar provisions apply to rehabilitation benefits and case manager services. As a result, insurers are not required under the Schedule to pay any medical benefits above the maximum rates set out in the Guidelines, except for transportation for an insured person or their attendant. This would include travel expenses such as mileage for service providers if they resulted in charges above the maximum rates in the Guidelines.
In this case, the Insurer did pay for travel time for the Applicant’s service providers at the maximum rates provided under the Professional Services Guideline. Any further payments for mileage would exceed the maximum hourly rates for the services as set out in the Professional Services Guideline.
As submitted by the Applicant, however, insurers are not prohibited from paying for mileage or for services above the maximum rates set out in the Professional Services Guideline.
Insurers are not prohibited from paying above any maximum amount or hourly rate established in the Guideline…The amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved (at p.2).
Both the Applicant and the Insurer referred to the Professional Services Guideline, the Transportation Expense Guideline as well as Bulletin A-14/14 in their submissions regarding the interpretation of the Schedule with respect to mileage claims.
The Applicant submitted that both the Professional Services Guideline (September, 2014) and Bulletin A-14/14 (December 1, 2014) were issued after the date of his accident in February, 2012 and should not be retroactively applied. He further submitted that the Guidelines are not necessarily imported wholesale into the Schedule, and that they are not binding.
The Insurer relied on the Guidelines and submitted that they are binding.
Because I find that the Schedule itself is clear regarding whether insurers are required to pay for mileage costs for the Applicant’s service providers, I do not need to rule on whether the Guidelines are retroactively applicable, or whether or not they are binding.
The Applicant also submitted that he lives in an underserviced area with few local service providers, and that he requires treatment in his home and in the community. He submits that mileage costs are reasonable and necessary because his service providers must travel to him to provide treatment and case management services. The Applicant further submits that if mileage costs are not provided, he may not be able to access the treatment that he needs.
The Applicant cited the case of Maude v State Farm Mutual Automobile Insurance Company (A12-03997)4 (“Maude”) in support of this argument. In Maude, the Financial Services Commission of Ontario (FSCO) found that treatment plans including travel and mileage costs were reasonable and necessary, as services were not available to the insured person in her home town. The decision found as fact that “the best resources” for treatment were not locally available to the Applicant.
This Application can be distinguished from Maude in two ways. First, in the current Application, the Tribunal has no evidence before it regarding the Applicant’s living situation, availability of treatment in his community and treatment needs. The Agreed Statement of Fact does not include these facts.
Second, whether travel costs are reasonable and necessary is not in dispute here. The Insurer did pay for the travel time of the Applicant’s treatment providers at the maximum hourly rates. Only mileage costs were denied.
II. Request for Costs by Insurance Company
The Insurer has requested an Order that the Applicant pay costs pursuant to Rule 19 of the Rules. The Insurer proposes that they provide written submissions on costs within seven days of the delivery of the Tribunal’s decision as provided under Rule 19.3 of the Rules.
The Insurer may provide written submissions on costs within seven days of receiving the Tribunal’s decision. Their submissions must set out their request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith as outlined in Rule 19.4 of the Rules.
If the Insurer makes a costs request, the Applicant may respond in writing within 10 days of receipt of the Insurance Company’s submissions.
Conclusion:
- The Insurance Company is not required to pay for the mileage expenses for service providers claimed in the treatment plans dated January 21, 2015, January 30, 2015, May 26, 2015, November 9, 2015, November 30, 2015 and January 5, 2016.
Released: September 8, 2016
Cynthia Pay
Adjudicator