Tribunal File Number: 17-006293/AABS
Case Name: 17-006293 v Certas Home & Auto 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:
V.H.
Applicant
and
Certas Home & Auto Company
Respondent
DECISION
ADJUDICATOR: Nidhi Punyarthi
APPEARANCES:
Gord W. Harris, lawyer for the applicant
Susan B. Keenan, counsel for the respondent
Heard in writing on: May 28, 2018
OVERVIEW
1On November 29, 2011, the applicant, who was then 44 years old, slipped and fell off the side of a hobby truck while attempting to cover it with a tarp. She sought certain benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The respondent denied part of her request. She filed an application with the Licence Appeal Tribunal (“Tribunal”) with respect to the denied benefits.
PROCEDURAL BACKGROUND
2The parties attended a case conference and were unable to resolve the matter at that time. They had initially agreed to and were ordered a combination hearing, which involved hearing in-person testimony in addition to receiving written submissions.
3The parties subsequently brought a motion on consent to dispense with the in-person portion of the hearing, and to change the format of the hearing to a hearing in writing. The Tribunal granted this relief, and the matter proceeded to a hearing in writing before me.
ISSUES
4The issues before me are as follows:
a. Whether the respondent is required to pay mileage to the service providers set out in the following treatment plans:
i. $144, for mileage proposed in the OCF-18 dated October 19, 2015 and denied on November 18, 2015, for the services of Brittany Moore, Occupational Therapist;
ii. $415.80 for mileage proposed in the OCF-18 dated August 12, 2015 and denied on September 24, 2015, for the services of Lisa Jadd, Speech Language Pathologist; and
iii. $144 for mileage proposed in the OCF-18 dated January 15, 2016 and denied on January 22, 2016, for the services of Brittany Moore, Occupational Therapist.
b. Whether the applicant is entitled to interest on any overdue payment of benefits.
RESULT
5Based on the evidence before me, I find, on a balance of probabilities, that the applicant is not entitled to the mileage expenses of the three service providers listed above.
REASONS
6The applicant has tendered an affidavit sworn by her on March 23, 2018. She describes her conditions, including those from a previous accident. She indicates that she lives in the village of Wardsville, Ontario, and that there are no local health care providers of which she is aware, including those who provide social work or occupational therapy services. She would have to normally drive to London, Ontario (which is about an hour away by car) to access treatment.
7The applicant indicates that sitting in a car for long periods of time causes a flare-up of her symptoms, and that her sitting tolerance is limited. She often feels worse from her travel to/from treatment, and any benefit she experiences from such treatment is overshadowed by the commute.
8The applicant therefore needs service providers to travel to her home for treatment sessions. She was able to locate very few service providers who were willing to travel to her home. She indicates in her affidavit that if the service providers at issue were or had been unwilling to travel to her, she would have chosen to forgo treatment, which would have been detrimental to her condition.
9The respondent has also provided an affidavit sworn on April 3, 2018, by Randall Brown, claims section manager. Mr. Brown indicates that there are a number of service providers willing and able to travel to Wardsville from London and Chatham. He also indicates that his reading of the Schedule is that travel time is paid to providers at the maximum rate allowable under the Professional Services Guideline, and that the Schedule does not allow the insurer to reimburse the mileage expenses of a service provider.
10To the extent that the two affidavits have conflicting information in them, I do not have the benefit of any cross-examinations to resolve and determine conflicted facts. It would indeed be inappropriate of me to make findings of fact from conflicting affidavits where no cross-examinations have been held: Les Compresseurs Gagnon Inc. v. Max Auto Supply Ltd. 1998 CanLII 874 (Ont. C.A.).
11On this basis, I have reviewed and considered the affidavits insofar as they do not conflict with each other. I have also reviewed the submissions of both parties.
12In terms of the law, I have considered the Schedule (Sections 15-17), the Professional Services Guideline, the Transportation Expense Guideline, and Bulletin A-14/14 of FSCO.
Sections 15-17 of the Schedule
13Sections 15-17 of the Schedule list certain benefits to be paid by the insurer to the injured person. In terms of transportation expenses, reference is only made to transportation for the insured person, and for the insured person’s aide or attendant. No reference is made to the transportation of an insured person’s service provider.
Professional Services Guideline
14The Professional Services Guideline (Superintendent’s Guideline No. 03/14), dated September, 2014, defines “expenses related to professional services” to include “all administration costs, overhead, and related costs, fees, expenses, charges, and surcharges.” There is also a cap on effective hourly rates and maximum fees payable for these expenses. Mileage as a specific category of professional expenses is not mentioned in this definition.
Transportation Expense Guideline
15The Transportation Expense Guideline (Superintendent’s Guideline No. 05/10), dated July, 2010, also refers to expenses related to the transportation of an insured person and his/her aide or attendant, to and from treatment sessions. Once again, there is no mention of the transportation expenses that could be claimed by a service provider travelling to the injured person.
Bulletin A-14/14
16FSCO also released Bulletin A-14/14, which states that “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 Transportation Expense Guideline.”
17There is no provision in the Schedule, the Guidelines, or the Bulletin, to pay mileage expenses to service providers. Based on this authority, the Tribunal has previously denied the mileage expense claims of service providers who had to travel to the home of an applicant who was catastrophically impaired (J.H. v. Intact, 2016 CanLII 60731).
18The applicant submits that J.H. is distinguishable from the facts in her situation. In J.H., there was no evidence before the adjudicator with respect to the living situation of the applicant or to the availability of treatment in her area. The applicant states that in her situation, the mileage expenses of her service providers are a reasonable and necessary consequence of her condition arising out of the accident, and that the insurer should exercise good faith in paying for such expenses. The applicant relies on Marilyn Maude v. State Farm Insurance Company (FSCO A12-003997, September 30, 2014).
19The applicant also indicates she has purchased optional benefits, and it follows that the respondent should pay for the mileage expenses being claimed. However, there is no evidence before me as to what these optional benefits contain. I have no evidence that the optional benefits thus purchased contain an agreement from the respondent to fund the mileage claims of the applicant’s service providers.
20The mandate of this Tribunal is to apply the Schedule in determining disputes under Section 280 of the Insurance Act. There is no provision in the Schedule for payment of mileage expenses for service providers.
21The applicant may have a serious need for treatment in her home and may reasonably require the service providers to travel to her home. I am, nonetheless unable to order that the respondent pay for her service providers’ mileage, as the Schedule does not provide for such expenses to be paid. The Schedule limits my authority in terms of what expenses can be ordered to be paid.
22I note, as an aside, that each of the service providers in question had itemized their travel time separate from mileage on the OCF-18’s, and they were paid for that time.
23The Tribunal is unable to grant the applicant the relief sought.
CONCLUSION
24The respondent is not required to pay the mileage expenses of the service providers who travelled to the applicant’s home. Since these expenses were properly denied by the respondent in the first place, no interest is payable.
25I thank the parties for their well-written submissions.
Released: August 21, 2018
Nidhi Punyarthi
Adjudicator