Licence Appeal Tribunal File Number: 24-003458/AABS
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:
Craig E Benson
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Sarah Guergis
APPEARANCES:
For the Applicant:
Brent McQuestion, Counsel
For the Respondent:
Ryan Kirshenblatt, Counsel
HEARD:
In Writing
OVERVIEW
1Craig Benson, the Applicant, was involved in an automobile accident on June 4, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Applicant was denied benefits by the Respondent, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the Applicant entitled to $962.50 ($9,043.50 less $8,081.00 approved) for other goods and services, proposed by Shannon Fabac Behaviour Therapy in a treatment plan/OCF-18 (“plan”) submitted May 10, 2022, and denied May 26, 2022?
ii. Is the Applicant entitled to $962.50 ($9,043.50 less $8,081.00 approved) for other goods and services, proposed by Shannon Fabac Behaviour Therapy in a plan submitted October 13, 2022, and denied October 19, 2022?
iii. Is the Applicant entitled to $429.00 ($6,984.70 less $6,555.70 approved) for occupational therapy services, proposed by Kindree OT Services in a plan submitted October 6, 2022, and denied October 26, 2022?
iv. Is the Applicant entitled to $660.00 ($8,660.00 less $8,000.00 approved) for other goods and services, proposed by Buttle Speech Pathology in a plan submitted December 5, 2022, and denied December 7, 2022?
v. Is the Applicant entitled to $429.00 ($6,265.18 less $5,836.18 approved) for occupational therapy services, proposed by Kindree OT Services in a plan submitted February 13, 2023, and denied February 15, 2023?
vi. Is the Applicant entitled to $880.00 for other goods and services, proposed by Buttle Speech Pathology in a plan submitted May 11, 2023 and denied May 24, 2023?
vii. Is the Applicant entitled to $517.00 ($7,312.58 less $6,795.58 approved) for occupational therapy services, proposed by Kindree OT Services in a plan submitted September 5, 2023, and denied September 7, 2023?
viii. Is the Applicant entitled to $413.60 ($7,384.26 less $6,970.66 approved) for occupational therapy services, proposed by Kindree OT Services in a plan submitted March 27, 2024, and denied March 28, 2024?
ix. Is the Respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?
x. Is the Applicant entitled to interest on any overdue payment of benefits?
3The Respondent submits that the only issue in dispute is whether Allstate must pay treatment provider mileage claimed in the eight treatment plans in dispute.
4The focus of the Applicant’s submissions are also on mileage. They submit that the Applicant has sought various medical and rehabilitation benefits for various types of therapy/benefits, but the associated mileage expenses related to these benefits, were denied by the Respondent.
5Therefore, the reasonableness and necessity of the mileage costs in the outstanding amounts of the treatment plans in dispute, and interest, are the focus of this decision.
RESULT
6I find that the Applicant is entitled to the outstanding balances of all of the treatment plans in dispute for mileage expenses, plus interest in accordance with s. 51 of the Schedule.
Mileage
7Pursuant to s. 15. (1) (g) of the Schedule, medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant.
8To receive payment for a treatment and assessment plans under s. 15 and 16 of the Schedule, the Applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the Applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
9The Applicant submits that the outstanding amounts of these treatment plans are reasonable and necessary because he required accommodations which require mileage. For example, given his severe injuries, his ongoing treatment and rehabilitation require community and situational-based approaches, rather than just traditional facility-based rehabilitation. However, the codes do not allow for the Applicant to be specific about these fees and thus they are simply entered as mileage. They submit “while each of the disputed subject treatment plans make reference to the mileage expenses as largely “provider mileage to treatment”, this is effectively a misnomer, it is a consequence of the imperfect and restrictive coding available to treatment providers in completing treatment and assessment plans and does not encapsulate the basis by which mileage expenses were incurred by the Applicant and/or his treatment and rehabilitation team.”
10The Applicant further submits that:
i. On August 27, 2024, the Applicant’s behavioural therapist, Shannon Fabac, wrote a letter confirming the necessity of the Applicant’s sessions taking place both at the Applicant’s home and in the community, and she provided support therein for that conclusion. She writes that due to the tremendous and debilitating, accident related, catastrophic brain injuries and behavioural challenges the Applicant struggles every single day to manage his schedule, routine and personal responsibilities. It is essential for his behavioural support workers and behaviour therapist to travel to and from his home for sessions. If travel was not available, he would not be able to attend or participate in behaviour therapy and community sessions.
ii. On August 27, 2024, the Applicant’s occupational therapist, Cheryl Hendry, also wrote to confirm that her provision of in-home and in-community occupational therapy services were essential and had been provided to the Applicant in both locales, and she provided detailed reasons for the provision of “environment-specific” delivery of occupational therapy services. The provision of “environment-specific” delivery of occupational therapy services which include environment set up to support recall (i.e., setting up 'same place' locations in the home to support recall in locating daily belongings), reducing trip/safety hazards in the home, rearranging kitchen/tools to reduce barriers to initiation/ participation in meal preparation, providing education and training for assistive devices and/or lightweight modified cleaning tools to support safe task completion. She further wrote that given the severe nature of the Applicant’s impairments in executive functioning and unique challenges maintaining safety in supported independent living, and requires in-home supports to assist with checking food safety/expiration dates, supporting basic ADLs, lADLs and household hygiene, managing his hoarding-related behaviours and acquisitions for clear pathways, and monitoring his vulnerability and safety at home and in the community. Further, that mileage costs are reasonable to maintain the Applicant’s safety in-home as well as in the community.
iii. The Applicant submits that the Respondent has historically funded “in-session mileage” relating to the Applicant’s medical and rehabilitation.
iv. Further, that Tarah Jefferies, speech-language pathologist, detailed repeated references to the Applicant’s participation in community-related activities and his challenges in such settings. Based on her initial and ongoing assessments of the Applicant, and her delivery of speech-language services, Ms. Jefferies documented her efforts to prepare the Applicant for social interactions in the community, the use of role-plays and context-specific social practice sessions, and the use of community-based situational assessments.
v. Shannon Fabac, behavioural services, has incurred mileage expenses in the course of providing behavioural therapy and supportive services in the subject treatment and assessment plans, in providing in-session behavioural therapy services in the community, which included outings, including but not limited to, grocery stores (i.e. Freshco, Metro, No Frills, Bulk Bam, etc.), community activities (i.e. farmer’s markets, farms, wood working programs, etc.), medical and professional appointments, visits to family and friends, completion of tasks (i.e. attending financial institutions, filing taxes, and researching alternative housing).
vi. The Applicant submits that Kindree OT Services has also incurred mileage expenses in the course of providing occupational therapy and associated services in the subject treatment and assessment plans, in providing in-session occupational therapy services in the community, which included outings, including but not limited to, commercial establishments.
11The Applicant relies on section 15(1)(g) of the Schedule which includes the language, “medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident as well as transportation for the insured person to and from treatment sessions, including for an aide or attendant” to support her claim.
12Further, the Applicant relies on Maude v. State Farm Mutual Automobile Insurance Company, 2014 CarswellOnt 14043 where the Financial Services Commission of Ontario (“FSCO”) found that treatment plans, including travel and mileage costs, were reasonable and necessary, given the claimant’s circumstances. The Applicant submits that in Maude, as in the Applicant’s case, both reside in Brantford, Ontario, an under-serviced community in Ontario. In the present case, the Applicant’s need for travel and mileage expenses also extend beyond geographical considerations and include the requirement for “environment specific” delivery of services based on the medical evidence detailed herein.
13The Respondent submits that The Professional Services Guideline (“PSG”) No. 03/14 dated September 2014 states that insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the PSG.
14It also relies on the FSCO Bulletin A-14/14 which states that provider mileage is not considered “authorized transportation expenses” and that “authorized transportation expenses” are intended to apply to expenses incurred by the insured person. There is no reference to “authorized transportation expenses” applying to expenses incurred by the treatment provider.
15The Respondent further relies on the Transportation Expense Guideline No. 04/16, which only permits payment of mileage for the insured person and their aide or attendant. The Transportation Expense Guideline does not refer to payment for a treatment provider’s mileage.
16The Respondent also raises the argument that the OCF-18s themselves do not say that the mileage expenses relate to travel for outings or within the community. Rather, the OCF-18s are clear that the mileage is for travel to the Applicant’s home.
17The Respondent cites 16-000009 v Intact Insurance Company, 2016 CanLII 60731 (ON LAT), where the Tribunal held that on a plain reading of the Schedule, an insurer is not required to pay for mileage expenses, even where (1) the claimant was catastrophically impaired; (2) the claimant argued that the services were best provided to him in his home and community; and (3) he lives in an area where access to treatment was limited.
18In this case, I find that the Applicant has pointed me to sufficient evidence to determine that the mileage costs are reasonable and necessary. The Applicant has addressed several points which challenge the PSG and FSCO Bulletin as raised by the Respondent. Primarily, I find the Applicant demonstrated the need for environmentally specific treatment which warrants the reasonableness and necessity for transportation to treatment. As the treatment has been determined to be reasonable and necessary, and the transportation is a part of the treatment, the transportation should then also be as it is required for the environment specific treatment required by the Applicant.
19I acknowledge the Respondent’s point that the Tribunal has held that the Schedule does not require payment of provider mileage, and where the insurer pays provider travel time, the insurer is not required to pay provider mileage. However, I also acknowledge the Applicant’s submission that since the cases the Respondent cites relate to a provider’s travel to and from the Applicant’s home (not travel during the treatment sessions) that his case is different, as these mileage costs relate to travel during the treatment sessions to get the Applicant out in the community.
20In this case, the PSG, Guideline, and bulletin do not necessarily apply as the transportation is a part of the services being provided and are not a separate thing. Transportation is not an expense incurred by the providers but is rather an element of the environment-specific treatment. Further, the Applicant has reasonably addressed why the OCF-18’s list the expense as mileage, due to limited vocabulary in the relied upon software.
21Therefore, on balance of probabilities, I find that mileage/transportation is payable.
Interest
22Pursuant to s. 51 of the Schedule. I find that interest applies on the outstanding amounts of the treatment plans in dispute.
ORDER
23I find that the Applicant is entitled to the outstanding balances of all of the treatment plans in dispute for mileage expenses, plus interest in accordance with s. 51 of the Schedule.
Released: December 5, 2025
__________________________
Sarah Guergis
Adjudicator