Tribunal File Number: 17-009093/AABS
Case Name: Certas Direct Insurance Company v M.C.
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.
Certas Direct Insurance Company
Applicant
and
M.C.
Respondent
DECISION
ADJUDICATOR: Dawn J. Kershaw
APPEARANCES:
For the Applicant: Julie Ferreira, Counsel
For the Respondent: M.C., Self-Represented
Held by Teleconference: July 26, 2018
OVERVIEW
1On December 21, 2017, the applicant (“Certas”) filed an application by an Insurance Company for resolution of a dispute.
2Certas asserts that the respondent (“M.C.”) falsified an accident report for the March 23, 2016 accident in relation to which she claimed, and was paid, income replacement benefits (“IRB”) under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) . Certas asserts that this constituted wilful misrepresentation on M.C.’s part, and Certas therefore is entitled to repayment of the IRB, pursuant to section 52 of the Schedule.
ISSUES IN DISPUTE
3Specifically, the disputed claim is as follows:
i. Is Certas entitled to repayment of IRB paid to M.C. for the period from May 31, 2016 to July 5, 2017, in the total sum of $8922.86, pursuant to section 52 of the Schedule?
RESULT
4Based on the evidence before me, I find that:
i. Certas is entitled to repayment of the IRB as set out in the preceding paragraph.
SECTION 52 OF THE SCHEDULE
5Section 52 of the Schedule provides that a person is liable to repay an insurer any benefit that is paid to the person as a result of wilful misrepresentation or fraud as long as the insurance company, within 12 months of paying the benefit, gives the person notice of the amount to be repaid. The 12 month period does not apply if the benefit was paid as a result of the insured’s wilful misrepresentation.
REASONS FOR DECISION
6I heard evidence from Certas’ representative, Ms. Ramirez, and from M.C.
7Ms. Ramirez, who has been a benefits advisor handling accident benefits claims for just under 12 years, testified that she took over and reviewed the applicant’s file in July 2017, after Certas had paid M.C. IRB.
8M.C. had filed an application for accident benefits on April 1, 2016 in which she wrote the accident date as March 23, 2016, but in which she did not provide a description of the accident.
9In response to Certas’ request for further information, in June 2016 M.C. faxed Certas an accident report from [a fire department] with an accident date of May 23, 2016. The report shows CP as the on duty firefighter, and lists his telephone number. It is signed by M.C.
10Certas paid M.C. IRB beginning on March 2, 2016. The uncontroverted evidence was that the total amount of IRB paid was $8,922.86.
11Certas suspended payment of IRB because it did not get financial information from M.C., which she denies, but this is not the issue for me to determine in this hearing.
12When Ms. Ramirez received M.C.’s file, she conducted an investigation. As part of her investigation, she asked the [fire department] for more information about the accident report. In response, she received an August 30, 2017 e-mail from [the fire department]’s legal counsel advising that the report was fraudulent for three reasons:
i. The phone number provided was for a billing company it did not use;
ii. The fax number provided was for the fire prevention division; and
iii. Reports generated by [the fire department] do not include a firefighter’s telephone number.
13After receiving this e-mail, Ms. Ramirez sent M.C. an Explanation of Benefits (EOB) dated September 27, 2017 advising her why Certas was entitled to repayment of the IRB and requesting repayment in the sum of $8,922.86.
14M.C. admitted both in an October 25, 2017 email to Ms. Ramirez and in her testimony at the hearing, that she created the fire rescue report using MP’s name. She testified she did so because Certas would not pay benefits to her without an accident report, and she did not have one because she did not wait around on the night of the accident because she was embarrassed. Despite this, she stated that the accident occurred and she was entitled to IRB. Ms. Ramirez testified that because the accident report was fraudulent, Certas had nothing to confirm that the accident actually occurred. M.C. was also asked on cross-examination about another claim she made for accident benefits in 2017, and she admitted this was a fraudulent claim for an accident that never happened. She testified she made a claim at that time because she was dissatisfied with the way Certas handled her original application.
15Ms. Ramirez testified that after she received M.C.’s e-mail admitting to the fraudulent accident report, she told her it was serious and the fraudulent report meant that there was wilful misrepresentation and Certas could claim repayment of the IRB. Certas sent M.C. another EOB dated November 29, 2017 asking for repayment.
ANALYSIS AND DECISION
16The evidence is uncontroverted that M.C. submitted a fraudulent accident report to Certas in relation to the 2016 accident, which is not mitigated by M.C.’s admission that she did so, nor by her testimony that the accident happened. Because the report was fraudulent, Certas has no proof that an accident occurred. Without that, Certas did not have to pay benefits, though it did so.
17In light of M.C.’s admission, I find there was wilful misrepresentation and Certas is entitled to repayment of the IRB as set out in section 52.
18Certas satisfied me that it provided M.C. with appropriate notice requesting repayment. M.C. did not dispute the sum claimed by Certas, nor the period during which Certas paid her IRB.
CONCLUSION
19I find as follows:
i. M.C. was not entitled to receive IRB for the period from May 31, 2016 to July 5, 2017 in the total sum of $8922.86.
ii. Certas is entitled to repayment of IRB from M.C. in the sum of $8922.86.
Released: August 7, 2018
_________________________
Dawn J. Kershaw, Vice-Chair