Category: Repayment

G.S. v. The Personal Insurance Company (19-001049)

The claimant sought various accident benefits. The insurer argued that the claimant was not involved in an accident, and alleged that he had made material misrepresentations. The insurer sought repayment of all accident benefits paid. Regarding the burden of proof, Adjudicator Hines held that the claimant had to prove that he was involved in an accident, but that the insurer was responsible for proving a material misrepresentation in order to be entitled to repayment. Adjudicator Hines accepted that the claimant was not involved in the alleged accident, as he was not a passenger in the vehicle he had claimed to be. The claimant did not call any witnesses to support that he was in the vehicle at the time. The claimant’s EUO evidence was inconsistent with the evidence of two other involved parties. Further, the claimant did not mention the accident at various medical appoints after the date of loss. Adjudicator Hines ordered the claimant to repay all accident benefits (medical benefits and NEBs), but he was not required to pay for IE costs incurred by the insurer.

Unica Insurance Inc. v. K.B. (19-006165)

The claimant had been paid ACBs by the insurer based on the alleged economic loss sustained by his mother, who was seeking employment at the time of the accident. In an earlier decision by the Tribunal, it was held that the mother did not suffer an economic loss. The insurer then sought repayment of $19,170.90 in ACBs on the basis that it was paid in error. The claimant refused to make repayment. Adjudicator Boyce held that section 52 applied and permitted the insurer to request repayment made in error for up to one year after the payments. He also held that the ACBs were being paid to the claimant, not his mother, so there was no defence that the benefits were not “paid to the person.”

A.J. v The Guarantee Company of North America (19-001321)

The claimant sought entitlement to income replacement benefits and physiotherapy treatment, while the insurer sought a repayment of IRBs which it claimed were wrongly paid to the claimant at the outset of the claim. The insurer relied on an orthopaedic IE report to justify its termination of IRBs. Adjudicator Grant placed little weight on the report, noting that it was flawed in that it did not comment on any testing that would have reflected the claimant’s workload demands, which were described as including operating heavy machinery and heavy lifting duties. Adjudicator Grant accepted the claimant’s evidence that she had attempted to return to both her full-time and part-time pre-accident employment, but had not been able to do so, and found that she was entitled to pre-104 week IRBs. However, he went on to find that she had not provided evidence to support that she met the more stringent post-104 week entitlement test. Adjudicator Grant also held that the claimant was liable to repay the IRBs as requested by the insurer for amounts paid while the claimant was being paid income for modified work, as the repayment request was sent within the required time period and clearly set out the amount to be repaid. Finally, Adjudicator Grant concluded that the claimant was entitled to the physiotherapy treatment plan, as her pain reports were consistent, credible, and ongoing since the accident, and the evidence supported that treatment had proven beneficial.

Sonnet Insurance Company v. L.O. (19-004559)

The insurer sought repayment of income replacement benefits because of error, wilful misrepresentation or fraud, and interest. Adjudicator Conway held that the insurer was entitled to repayment of IRBs plus interest. The insurer made IRB payments based on the representations of the claimant. The documents submitted to the insurer by the claimant stating that he was employed were false. Adequate notice was given to the claimant to repay the IRBs and there was evidence that the insurer delivered its notice at the address provided by the claimant. Notice for repayment was given in a timely manner to the claimant and as stipulated by the SABS.

N.C. v. TD Insurance Meloche Monnex (18-003656)

The claimant sought a determination that he suffered a catastrophic impairment due to a Class 4 marked impairment or 55 percent WPI, ACBs, HK expenses, and various medical benefits. The insurer sought repayment of IRBs. Adjudicator Neilson concluded that the claimant did not suffer a catastrophic impairment. She first noted that the claimant would only be assessed on his current state – not potential future surgeries or deterioration that may occur. She also ruled out any WPI for hip issues, because the claimant could not prove that his hip impairments were causally related to the accident. In terms of psychological impairment, Adjudicator Neilson held that the claimant suffered Class 2 impairments in all spheres of function (the claimant’s occasional deterioration did not support a Class 4 impairment, which required the impairment to be stable or ongoing), which was equivalent to a 15 to 20 percent WPI. The total WPI was 36 percent. The insurer’s request for IRB repayment was dismissed because the insurer could not prove that payment of earlier IRBs was made as a result of material misrepresentation or fraud. Misreporting on his income tax returns was due to a T4 not being given to him by his employer.

Economical Mutual Insurance Company v. A.S. (19-001820)

The insurer applied to the LAT for repayment of IRBs, and also for a determination on the claimant’s entitlement to further IRBs, the application of a section 33 suspension, and whether the claimant sustained a catastrophic impairment. Adjudicator Boyce held that the insurer could not bring an application related to IRB entitlement, section 33 suspension, or a catastrophic impairment, but could proceed with the request for repayment. He reasoned that the Tribunal only had jurisdiction once there was a dispute between the parties. The insurer’s determination regarding IRBs, section 33, and a catastrophic impairment was not equivalent to a “dispute” or “disagreement.” The claimant could, potentially, agree with the determinations and abide by the decisions. The insurer was permitted to proceed with the request for repayment, but the remainder of the issues were dismissed.

Applicant v. Northbridge Personal Insurance Company (18-000729)

The claimant sought entitlement to income replacement benefits, while the insurer sought a repayment of $59,817.21 in IRBs paid from October 2011 to August 2017 on the basis of wilful misrepresentation. Vice-Chair Marzinotto dismissed the claimant’s application and found that the insurer was entitlement to repayment of IRBs paid to date. The Vice-Chair was satisfied on the evidence before her that the claimant misrepresented his employment status, misrepresented his income, and submitted manufactured pay slips after the accident in support of his application for accident benefits.

J.V.M v. Aviva General Insurance Company (18-009606)

A preliminary issues hearing was held to determine whether the insurer was barred from claiming a repayment of IRBs. The claimant argued that the insurer’s request was made outside of the 12 month period permitted by section 52. Adjudicator Grant held that the insurer was not barred from claiming a repayment of IRBs, as the claimant received an overpayment of IRBs during a period in which she was employed and the insurer provided repayment notice pursuant to s. 52 of the SABS. He noted that the 12 month period was not with reference to the first payment of IRBs, but rather the entire period over which the repayment is claimed. A case conference was ordered to address the issue of repayment of IRBs and the substantive issues in dispute.

Aviva General Insurance Company v. N.G. (18-005588)

The insurer sought repayment of IRBs of $2,400 on the basis that the claimant had wilfully misrepresented his address at the time his policy was renewed, invalidating the policy. Adjudicator Norris held that the insurer failed to prove that the claimant had wilfully misrepresented his address. The insurer did not put before the Tribunal any investigation report or affidavit to support same. The submissions of the insurer were not evidence, and did not prove that the claimant had moved before renewing his policy.

Wawanesa Mutual Insurance Company v. S.P. (19-000982)

The insurer sought repayment of income replacement benefits that were paid as a result of misrepresentation. Adjudicator Manigat found that the claimant made a wilful misrepresentation of her employment status, the insurer had given proper notice under s. 53 of the SABS, and the insurer was entitled to repayment of IRBs plus interest. The claimant alleged that she was employed at the time of the accident. The evidence submitted by the insurer demonstrated that the claimant had not been employed.