Licence Appeal Tribunal
Tribunal File Number: 17-002703/AABS
Case Name: 17-002703 v Intact Insurance Company
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:
T. F.
Applicant
and
Intact Insurance Company
Respondent
Adjudicator: Thérèse Reilly
APPEARANCES:
For the Applicant: Kandace Davies, Counsel
For the Respondent: Nicholas Carmichael, Counsel
Heard In Writing: September 5, 2017
OVERVIEW
1This case is about the rate of mileage allowed to a spouse of an injured person when he was visiting his wife who was hospitalized as a result of injuries arising from a motor vehicle accident.
2The spouse submitted mileage expenses claiming mileage as a visitor at the rate of $0.54 a kilometre based on Revenue Canada’s rate for automobile expenses.
3The respondent paid for mileage at $0.40 per kilometre. The spouse is a visitor however the respondent maintains the spouse was also an aide when he provided transportation services for the applicant. As an aide, the rate for mileage is set by the Transportation Expense Guideline and the correct rate is $0.40 cents per kilometre.
4A written hearing was scheduled to address this issue. The only evidence submitted by the parties is documentary evidence and I have considered all of the documents submitted.
ISSUES:
5The following issues are in dispute:
i. Is the applicant entitled to a visitor expense in the amount of $ 327.60 incurred by her spouse when visiting the applicant during her recovery or treatment, submitted December 12, 2016 and denied by the respondent on December 21, 2016?
ii. Is the applicant entitled to a visitor expense in the amount of $252.00 incurred by her spouse when visiting the applicant during her recovery or treatment, submitted January 5, 2017 and denied by the respondent on January 17, 2017?
iii. Is the applicant entitled to a visitor expense in the amount of $ 337.12 incurred by her spouse when visiting the applicant during her treatment or recovery, submitted January 20, 2017 and denied by the respondent on January 30, 2017?
vi. Is the applicant entitled to interest for any overdue payments?
RESULT:
6The applicant is not entitled to the amounts claimed for mileage that are in excess of $0.40 cents per kilometre. The correct rate for the amount claimed for mileage is $0.40 cents per kilometre, not $0.54 cents per kilometre.
7Interest is not payable as there is no overdue payment.
Issue #1 – Is the spouse a visitor or an aide?
8Both parties agree that the applicant’s spouse is a visitor and mileage is a visitor expense under Section 22 of the “Schedule” which entitles a visitor to reimbursement of all reasonable and necessary expenses incurred which includes transportation expenses.
9Section 22 of the Schedule provides:
(1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for reasonable and necessary expenses incurred not more than 104 weeks after the accident by the following persons as a result of the accident in visiting the insured person during his or her treatment or recovery:
The spouse, children, grandchildren, parents, grandparents, brothers and sisters of the insured person.
An individual who was living with the insured person at the time of the accident.
10The respondent submits however that the applicant omits to consider her own position that the applicant’s spouse is a visitor, when he submits claims for occasions in which he is providing transportation services, and then claims he is acting as an aide.
11To support this position, the respondent refers to an attendant care assessment (Form 1) submitted by the applicant’s occupational therapist on January 27, 2017 claiming a monthly amount of $2,528.91 for attendant care services which names the spouse as the attendant care provider. 1
12Form 1 lists transportation services provided by the spouse to the applicant. The spouse provided communication, feeding and emotional support services to the applicant at the hospital. The spouse was observed providing these services for the applicant when the applicant was in the hospital between December 15, 2016 and January 10, 2017. 2 In these instances, the respondent submits the spouse is acting as an aide or attendant. The applicant did not address this point in its submissions.
13I find that the spouse did visit the applicant at the hospital. More importantly, I find the spouse was an aide when he provided transportation services to the applicant. Based on the Form 1, he provided attendant care services which included the transportation services to the applicant. He transported the applicant to and from medical appointments on the weekends. I agree with the position that the spouse was more than a mere visitor. He incurred the transportation mileage expense while an aide.
Issue #2 – What is the correct rate for mileage?
14The Transportation Expense Guideline is issued pursuant to s. 268.3 of the Insurance Act. It 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, counselling sessions, training sessions, assessments and examinations, must be paid by an insurer. This Guideline sets out authorized expenses and applicable rates for the purpose of ss. 15 (2) (c), 16 (4) (f), 19 (1) (b) and 25 (4) of the Schedule.
15For travel that takes place on or after October 1, 2016, the rate that is to be used to calculate transportation expenses for the use of the insured person’s automobile is $0.40 per kilometre travelled.
16The 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, counselling sessions, training sessions, assessments or examinations. The insurer is also liable to pay for all reasonable and necessary transportation expenses of the insured person’s aide or attendant. Transportation expenses are calculated based on the most direct route and include incurred parking fees.
17I do not accept the applicant’s position that the Transportation Expense Guideline which sets out authorized transportation expenses for the purposes of a number of enumerated sections of the Schedule, does not apply. The applicant argues the Guideline does not specify a rate for mileage submitted under section 22. 3 Therefore, the rate imposed by the Guideline does not apply to a section 22 claim by a visitor. The applicant maintains that had the legislature intended the Guideline to apply to section 22, it would have expressly said so. 4
18I find the applicant has overlooked the language of the Guideline which states that it is to be used for the purposes of a claim under sections 19 (1) (b) which relates to a claim for attendant care benefits (as is the case in this matter) and Section 25 (4) of the Schedule. Section 25 (4) states that authorized transportation expenses are those incurred in transporting an insured person to and from an assessment or examination including transportation expenses for an aide or attendant, which is the case at hand.
19Section 19 provides as follows:
19(1) Attendant care benefits shall pay for all reasonable and necessary expenses,
(a) that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant … and,
(b) that, to the extent any of the expenses referred to in clause (a) are for transportation, are authorized transportation expenses
20Section 25(4) provides:
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 referred to in subsection (1), including transportation expenses for an aide or an attendant.
21I agree with the respondent that the Guideline applies as it applies to travel expenses incurred by an insured person or his or her aide or attendant. 5 In such a case, the Guideline provides that the rate is $0.40 per kilometre and not $0.54 as provided by the Canada Revenue automobile expenses.
For the reasons outlined above, I find that:
22The applicant is not entitled to receive the claimed amounts in excess of the $0.40 cents per kilometre. The correct rate for mileage is $0.40 cents per kilometre as provided in the Guideline. No interest is payable as there are no overdue payment of benefits.
Released: November 29, 2017
Thérèse Reilly, Adjudicator