Tribunal File Number: 17-001368/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:
State Farm Mutual Automobile Insurance
Applicant
and
F.B.
Respondent
DECISION
AJUDICATOR: Christopher A. Ferguson
HEARD in Writing on: January 22, 2017
OVERVIEW
1FB (“the respondent”) was involved in an automobile accident on May 30, 2012 (“the accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The respondent applied for and received benefits from the applicant, including $4,776.44 for prescription medication expenses.
3State Farm Insurance (“the applicant”) determined that the respondent was not entitled to the $4,776.44 paid for prescription drugs, and issued a notice to the applicant dated November 14, 2016 informing her of the overpayment and requesting repayment. The respondent has not, to date, responded to the repayment request.
4The respondent has declined to participate in the adjudication process and has offered no response to the applicant’s assertions. The Tribunal has confirmed delivery of case conference and hearing notices to the respondent.
5The applicant has applied to the Tribunal to determine its entitlement – and the applicant’s obligation -- to repay the disputed amount.
DISPUTED BENEFITS
6The issues to be decided by the Tribunal are:
Is the applicant entitled to repayment of a medical benefit in the amount of $301.78 for a medication expense provided by Metro Ontario Pharmacies, for July 18, 2012?
Is the applicant entitled to repayment of a medical benefit in the amount of $1,126.43 for a medication expense provided by Metro Ontario Pharmacies, for August 6, 2013?
Is the applicant entitled to repayment of a medical benefit in the amount of $2,339.05 for a medication expense provided by Metro Ontario Pharmacies, for April 26, 2015, denied on November 14, 2016?
Is the applicant entitled to repayment of a medical benefit in the amount of $1.009.18 for a medication expense provided by Metro Ontario Pharmacies, for October 12, 2015, denied on November 14, 2016?
Is the applicant entitled to interest on repayable amounts?
FINDINGS
7The respondent is liable to repay all of the amounts enumerated in paragraph 3 above, with accrued interest at the prescribed rate. The application is allowed.
8I find on the balance of probabilities that overpayments by the respondent were made as the result of wilful misrepresentation; accordingly, there is no limitation period on the applicant’s right to recover the overpayments.
REASONS
9Section 52 of the Schedule prescribes that a claimant is liable to repay any benefit paid to him or her as the result of an error or as the result of wilful misrepresentation or fraud.
10Section 52(3) requires the insurer to notify the claimant of the requirement to repay benefits within 12 months of the overpayment; however, this limitation does not apply to overpayments involving wilful misrepresentation or fraud.
11As noted, the respondent has not participated in the adjudication process, despite notices from the Tribunal. She made no submissions on the applicant’s claims.
12The evidence that the respondent received payments from Trillium while receiving benefit payments for the same prescription expenses from the applicant is clear: the applicant produced a prescription summary and confirmation of payment from Trillium dated August 16, 2016. It is uncontested and I accept it as true.
13As evidence that the respondent’s claims were wilful misrepresentations or fraud, the applicant submitted affidavits and transcripts of the applicant’s testimony in a FSCO arbitration proceeding. The documented evidence is:
i. The respondent acknowledged receiving Trillium prescription benefits in an affidavit dated June 20, 2014 during unrelated litigation.
ii. In FSCO arbitration proceedings the respondent denied any knowledge of prescription receipts or drug payments from Trillium on April 10, 2017, but in cross-examination on April 11th, when confronted with the above-noted affidavit, the respondent acknowledged that she was aware of being enrolled in the Trillium drug benefit program. She also affirmed that she was informed before the accident that she was aware that she had coverage for prescription medications.
iii. In the above-noted FSCO proceedings, the respondent agreed that by submitting OCF 6 claims to the applicant she was effectively telling the insurer that she was out-of-pocket for these expenses and need to be paid back. She went on to provide a rationale for this misrepresentation.
14None of this evidence is contested by the respondent.
15Based on the foregoing evidence I find that the respondent is liable to repay the applicant $4776.44 in accordance with s.52 of the Schedule.
16I find that the overpayments were the result of wilful misrepresentation by the respondent; accordingly, there is no limitation period on the applicant’s right to recover overpayments or on its obligation to provide a notice of repayment.
Request for Interest
17Section 52(5) permits the insurer to charge interest on the outstanding balance of overpaid benefits beginning on the 15th day after the repayment notice is given.
18I find that the respondent is liable to pay interest on the overpayments due to the applicant, at the prescribed rate.
CONCLUSIONS
19The respondent is liable to repay $4,776.44 to the applicant, plus accrued interest at the prescribed rate.
Released: February 12, 2018
Christopher A. Ferguson
Adjudicator