The recent decision of Adjudicator Pay in J.H. v Intact Insurance Company, 2016 CanLII 60731 (ON LAT) confirmed that payment of treatment providers’ mileage expenses cannot be recovered where the provider has also been paid at Guideline rates for his or her travel time.  In J.H., the claimant was a catastrophically injured individual who requested payment of both provider travel time and mileage for treatment received in his home.  While Intact approved payment of the providers’ travel time at their respective hourly rates, it refused payment of mileage on the basis that the Schedule and the Professional Services and Transportation Expense Guidelines did not require insurers to pay for the mileage of service providers.  Intact also relied on FSCO Property and Casualty – Auto Bulletin A-14/14, which expressly stated that “authorized transportation expenses”, as defined in the Schedule, were intended to apply only to expenses incurred by the insured person and an aide for travel to and from treatment sessions.

The Claimant maintained that he was entitled to payment of treatment providers’ mileage expenses on the basis that (1) he required treatment in his home, (2) his treatment providers were required to travel from surrounding areas due to a lack of resources in his vicinity, (3) 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, and (4) the Guidelines were not necessarily imported wholesale into the Schedule, and were not binding.   

Adjudicator Pay rejected the claimant’s position and concluded that Intact was not required to pay for provider mileage, as sections 15 to 17 of the Schedule plainly mandated payment of the claimant’s transportation costs, but not his treatment providers’.  Arbitrator Pay also noted that the Schedule specifically stated that insurers were not liable to pay for medical benefits that exceeded  the maximum rate or amount of expenses established under the Guidelines, except in relation to transportation expenses for an insured person or his or her aide or attendant.  Where a treatment provider had already received his or her hourly rate in payment for transportation, an insurer was not required to compensate expenses beyond that, such as mileage.

In reaching this decision, Adjudicator Pay’s conclusion differed from that of Arbitrator Arbus in Maude v State Farm Mutual Automobile Insurance Company (A12-03997), in which both travel time and mileage were found to be reasonable and necessary where the Claimant needs exceeded what could be provided by local treatment providers.  Adjudicator Pay distinguished the claim at hand from the circumstances of Maude in two ways.  First, she had no evidence regarding the Claimant’s living situation, treatment needs, and the availability of treatment in his community other than his own statements.  Second, the issue of whether travel costs generally were reasonable and necessary was not in dispute, as Intact had already approved and paid for the travel time of the Claimant’s treatment providers.  As such, compensation for mileage may perhaps remain available in exceptional circumstances.

Overall, J.H. v Intact may be an indicator that the LAT’s focus rests on the letter of the law moreso than we have seen in previous years with FSCO.  The decision is a strong indicator that entitlement will not be stretched to meet the unique requests of claimants in a manner not contemplated by the Schedule.

If you have a question about this blog or a similar file, please contact Eric Grossman at 416-777-5222