The insurer sought repayment of IRBs in the amount of $12,731.87 for the period from July 10, 2017 to April 26, 2019 plus interest and costs. At the time of the accident, the claimant was employed at a shoe store and at a jewellery store. The insurer spoke with the jewellery store on September 26, 2017 and was advised that the claimant had returned to work on September 12, 2017. Almost four months later, the insurer received an OCF-2 from the jewellery store employer that the claimant had returned to work on August 4, 2017. The insurer had no information regarding whether the claimant had returned to work at the shoe store. The insurer continued to pay IRBs. The claimant eventually participated in an IE to determine ongoing IRB entitlement, and it was disclosed in the report of May 8, 2019 that the claimant was working at a new place of employment, which she had not reported to the insurer. The insurer had contacted the claimant on April 24, 2019 prior to receiving the IE report to discuss stale-dated cheques and reschedule an IE. The insurer sent a letter to the claimant on July 15, 2019 asking for the date of return to work and seeking repayment of IRBs of $3,108.48. The insurer did not receive a response. A LAT Application was then filed by the insurer on September 11, 2019. The claimant produced paystubs during a Case Conference, which indicated that she had been working for a new employer since 2017. In response to the new information, the insurer requested repayment of all IRBs on the basis of material misrepresentation. The claimant argued that the insurer should have or ought to have known she had returned to work because she advised her treatment provider, whom she expected to provide this information to the insurer. Adjudicator Norris found no evidence that the claimant advised a treatment provider of her return to work, and no clinical notes and records were produced to support the claimant’s position. Regarding the notice of repayment, the claimant argued that the insurer did not notify her within the 12 month requisite period of the overpayment and, in the alternative, argued that the insurer was statute barred from claiming repayment for failure to file its LAT Application within two years of the overpayment. Adjudicator Norris found the insurer had complied with s. 52 of the SABS. The insurer was only required to give the claimant notice of the amount it required her to repay. The limitation period in s. 52 did not apply to this case scenario as the claimant had wilfully misrepresented her return to work date. Adjudicator Norris ordered the claimant repay the IRB overpayment amount including interest and costs at $100. Adjudicator Norris concluded the insurer had proven the claimant had willfully misrepresented her employment status. The claimant had failed to produce a Record of Employment, which would have clarified the claimant’s period of absence and losses. Adjudicator Norris found an adverse inference in the claimant’s failure to provide a reason for not producing the records.
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