The claimant sought entitlement to IRBs and a special award. The insurer sought repayment for an overpayment of IRBs. Adjudicator Anwar found that the claimant was not entitled to IRBs because she did not suffer a substantial inability to perform the essential tasks of her pre-accident job; a special award was also denied. The insurer was not entitled to repayment of IRBs because it had not submitted evidence regarding the payment of IRBs made to the claimant.
The claimant sought reconsideration of the Tribunal’s decision ordering him to repay IRBs to the insurer. The insurer had voided the claimant’s insurance policy after he had failed to notify the insurer of a change in a risk material to that policy. The claimant argued that a third party was at fault for the failure to advise the insurer of the material change; he submitted documents at the reconsideration hearing to support this contention, which had not been previously disclosed. Executive Chair Lamoureux upheld the Tribunal’s decision. She refused to consider the new documents as Rule 18.2(c) only allowed for parties to correct evidence already adduced at a hearing. Executive Chair Lamoureux further held that the documents, if they had been admitted, supported a finding that the claimant was aware of his responsibility to keep the insurer apprised of any material changes that affected his policy, and that he intentionally failed to do so.
The central issue in this dispute was the quantum of IRBs payable. The insurer sought repayment for IRBs in the amount of $6,535.62 due overpayment based on the claimant’s post-accident income. The dispute proceeded to an oral hearing. At the hearing, a timetable was set for written submissions. The claimant filed reply submissions 40 days past the deadline set at the hearing. The insurer sought to dismiss the claimant’s reply submissions from consideration. Adjudicator Truong allowed the reply submissions in the interest of natural justice and procedural fairness. Adjudicator Truong held that as the insurer was not entitled to respond to the claimant’s reply submissions, the insurer was not prejudiced by the claimant’s late submissions. As for the disputed quantum of IRBs, Adjudicator Truong held that the claimant’s collateral benefits disability plan, which provided payment for loss of income under an income continuation benefit plan, qualified as post-accident income and was deductible from the claimant’s IRB payment. Adjudicator Truong preferred the evidence of the insurer’s accountant and concluded that the insurer was entitled to repayment of $6,535.62.
The claimant sought entitlement to IRBs for the period of June 23, 2015, to December 1, 2016. The insurer sought repayment of IRBs in the amount of $1,600.00. The parties agree that the claimant was self-employed as the owner/operator of a gas station and convenience store for 26 out of the 52 weeks prior to the accident. In November 2015, the claimant became the owner/operator of a coffee shop. The claimant testified that he was only able to work at the coffee shop for 25 hours per week due to accident-related impairments, compared with his pre-accident ability to work 50-60 hours per week at the gas station/convenience store. Adjudicator Neilson found that the claimant was substantially unable to perform the essential tasks of his pre-accident employment for the period claimed. Adjudicator Neilson found that an overpayment in IRBs had been made for a 5.5-week period because post-accident income had not been deducted from the amount paid. The insurer was found entitled to the amount that was overpaid.
The claimant and the insurer disputed the proper calculation of IRBs. The claimant was self-employed at the time of the accident. He argued that his IRB entitlement was to be calculated based solely on his farming income, without regard to losses attributed to his separate numbered corporation. Aviva argued that the losses of the numbered corporation had to be considered, and that there was an overpayment of IRBs. Adjudicator Ferguson rejected the insurer’s approach and held that the claimant could base his IRB solely upon his gross annual employment income without regard to the numbered corporation’s losses.
The insurer sought repayment of IE costs, the cost of disability certificate, and various investigation costs based on the claimant not being an occupant in the vehicle at the time of the accident. Adjudicator Ferguson held that the claimant was not an occupant of the vehicle based on inconsistencies in reporting, and that he made a wilful misrepresentation. However, in terms of the repayment requests, the adjudicator held that the Tribunal could not order the claimant to repay the cost of IEs of investigations. Only the cost of the Disability Certificate was ordered to be repaid.
The claimant sought entitlement to further income replacement benefits and the insurer sought repayment of IRBs it paid to the claimant calculated on the understanding that he was an employee rather than self-employed. The claimant did not return to work after the accident citing his daily use of marijuana to control his anxiety, depression, stress, paranoia, and pain as the reason. Adjudicator Maher held that the claimant was not entitled to further IRBs. With respect to the overpayment issue, Adjudicator Maher held that while the insurer had overpaid IRBs to the claimant, he was not required to repay the insurer because the insurer did not give proper notice of the amount to be repaid and did not satisfy the Adjudicator that the overpayment resulted from any wilful misrepresentation on the part of the claimant.
The insurer sought repayment of benefits, the costs it incurred in conducting IEs, and the cost of adjusting the claim based on the claimant’s wilful misrepresentation and fraud. The claimant was unrepresented and did not participate in the proceedings. Adjudicator Ferguson agreed with the insurer’s submissions that, based on the evidence, the claimant was not in fact involved in the accident and that as the misrepresentation and fraud went to the entire claim for accident benefits, the claimant was liable to repay all sums paid by the insurer in relation to his claim ($2,400) plus interest. Adjudicator Ferguson denied the insurer’s request for payment for the costs of IEs and adjusting the claim, concluding that there was nothing in the SABS that created a repayment obligation for these costs.
The insurer sought repayment of income replacement benefits. Adjudicator Robert Watt reviewed the jurisprudence of section 52 and noted that a proper repayment notice should include: (i) identification of the type of benefit that was overpaid, (ii) the payment period for which repayment is sought, (iii) the amount of repayment sought, and (iv) the amount claimed need not be perfectly correct, but should be substantially correct. Moreover, repayment is owed on monies paid in error, regardless of the error. As well, interest is also payable on the amount owed. On review of the evidence and notice letter, Adjudicator Watt held the insurer had complied with the notice requirements and ordered the claimant to repay the overpaid IRBs with interest.
The insurer sought repayment of overpaid income replacement benefits, as well as the cancellation fee for a missed examination under oath. Adjudicator Sandeep Johal reviewed the evidence of the insurer and determined that it failed to establish the claimant made a willful misrepresentation resulting in an error. Because a willful misrepresentation was not established, repayment could not be ordered. Moreover, the insurer did not provide any legal authority to order the payment of cancellation fees for a missed EUO. Accordingly, the insurer’s claims were dismissed.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP