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:
Travelers Insurance
Applicant
and
C.B.
Respondent
DECISION
PANEL:
Cezary Paluch, Adjudicator
APPEARANCES:
For the Applicant:
Tim Crljenica, Counsel
For the Respondent:
Did not appear
Heard In Person and In Writing:
April 18,2019 (Toronto, Ontario)
OVERVIEW
1The respondent, CB, was involved in an automobile accident on November 4, 2016. The applicant, Travelers Insurance, paid CB income replacement benefits (“IRBs”) by in the amount of $400.00 per week until the end of 2017 pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant stopped the IRB payments because they discovered that CB had begun working in April 2017 and did not notify them of her post-accident income.
2On December 19, 2017, the applicant wrote to the respondent that her entitlement to the IRB was suspended as of December 18, 2017, and requested repayment in the amount of $20,800.00 (being $400,00 per week over 12 months).
3On August 14, 2018, the applicant filed an Application by an Insurance Company for Auto Insurance Dispute Resolution under the Insurance Act seeking repayment of the overpaid IRB from the respondent.
4On December 12, 2018, a case conference was held but the respondent did not attend. Adjudicator Watt ordered the respondent to produce her post-accident income and employment records by January 11, 2019. The matter was to proceed to a hearing to commence on March 11, 2019 in writing. However, prior to the hearing taking place, as the respondent did not produce her employment records or her post-accident income records as ordered, the applicant requested an adjournment of the hearing date to obtain the respondent’s employment records needed to adjudicate the issue.
5At a motion hearing on February 15, 2019, Adjudicator Maedel ordered an in-person hearing on April 18, 2019 for the examination of a representative from the respondent’s employer and a hearing in writing on May 21, 2019 with written submissions and evidence in accordance with the timeline set out in the order. The in-person hearing component in this matter proceeded on April 18, 2019. However, the respondent still did not attend. The hearing proceeded and the representative from the respondent’s employer was examined.
6As a result of the respondent’s non-attendance, I issued an Order dated May 10, 2019, adjourning the written hearing portion until June 19, 2019 to allow the applicant to serve a copy of the transcripts from the oral portion of the hearing on the respondent by April 30, 2019, and to give her an opportunity to review the evidence in the transcripts. Following, if the applicant still requested to examine the representative to bring a motion explaining the reasons for her request and why she was not able to attend the hearing date of April 18, 2019. This would allow the applicant not to be prejudiced in any way and participate in the hearing (i.e. cross examine the witness) despite her non-attendance at the hearing.
7The applicant provided the transcripts to the respondent on April 24, 2019, in accordance with the Tribunal Order. However, the respondent still did not bring any motion requesting to cross-examine her employer’s representative or provide any submissions as part of the written component of this hearing.
8This decision deals with the only issue in dispute – whether the respondent is liable to repay to the applicant IRBs plus interest due to the overpayment of this benefit.1
ISSUE TO BE DECIDED
9Is CB liable to repay the applicant the amount of $13,134.06 in IRBs she received from the insurer (for the period between April 26-December 8, 2017) plus interest? Alternatively, is she liable to repay the amount of $9,660.35 in IRBs (for the period between April 26-December 8, 2017 less her post accident earnings) plus interest?
RESULT
10I find that the respondent is liable to repay to the applicant IRBs in the amount of $13,134.06 plus interest calculated in accordance with s. 52(5) of the Schedule.
ANALYSIS
11Prior to the accident, the respondent was employed as a registered practical nurse at [a hospital]. As of April 26, 2017, the respondent began working as a registered practical nurse at [a Long-Term care facility].
12A person is only entitled to receive IRBs during the first 104 weeks after the accident if, as a result of the accident, he or she suffers a substantial inability to perform the essential tasks of his or her pre-accident employment.
13The similarity in the respondent’s pre-accident employment and post-accident employment suggests that she did not suffer a substantial inability to work as a registered practical nurse. As well, the respondent did not attend the in-person hearing, or the case conference or the motion and has not submitted evidence to the contrary. The onus is on the respondent to prove that she met the “substantial inability” test in order for her to be entitled to IRBs. She has not met her burden of proof for entitlement to IRBs after April 26, 2017. Therefore, it is clear to me that the respondent has not established a substantial inability to perform the essential tasks of her pre-accident employment since returning to work as a registered practical nurse on April 26, 2017.
14I also note that the respondent’s submissions were due June 10, 2019. The deadline was extended by me, with the applicant’s consent, at the in-person hearing on April 18, 2019. This extended deadline was essentially to allow CB additional time to file her responding materials and review the transcripts from the hearing (which the applicant provided to her on April 24, 2019), and to allow her to participate in the hearing if she so wished. The respondent did not request an opportunity to examine the representative from [the Long-Term care facility], Mr. P.P., administrator. As a related point, I found Mr. P.P. to be a very professional and credible witness. Given that Mr. P.P.’s evidence was unchallenged, the Tribunal accepted it in its entirety.
15Despite the good faith efforts made to accommodate the respondent, she still did not file any submissions and has not taken any steps to contact the Tribunal regarding this matter. This is despite the Tribunal contacting her several times, providing her the Orders and reminding her of the deadlines changed to accommodate her.
16Under s. 52 of the Schedule, the respondent is required to repay the applicant IRBs if the applicant paid the IRBs to the respondent in error and the applicant gave the respondent notice of the amount to be repaid within twelve months of the overpayment.
17There is no issue that the applicant’s notice requesting the repayment was sent within 12 months of the payment of IRBs to the respondent in compliance with the Schedule. Moreover, following the in-person hearing, after the insurer had finally received the necessary information including the respondent’s pay stub from [the Long-Term care facility], the applicant wrote to the respondent on April 26, 2019 requesting repayment of $13,134.06 in IRBs for the period between April 26 and December 8, 2017. The letter clearly sets out the amount to be repaid and requests repayment.
18In this case, the respondent was not entitled to IRBs after she began her new employment at [a Long-Term care facility]. Her job at [a Long-Term care facility] was similar in nature to her pre-accident employment and she therefore did not suffer a substantial inability to perform the essential tasks of her pre-accident employment. Therefore, any IRBs paid to her after she began the new job were paid to her in error. Travelers paid her $13,134.06 during this period while she was earning post-accident income as a registered practical nurse at [a Long-Term care facility]. I am satisfied that CB is liable to repay the amount claimed.
19I also note that under the Schedule, the weekly quantum of IRBs takes into account an insured’s post-accident income subject to deductions for 70 percent of any post-accident income earned by the insured. The applicant has also filed an accounting calculation from Williams and Partners quantifying the overpayment ($9,660.35) on the assumption that the respondent was entitled to receive IRBs until December 9, 2017. This was their alternative position. However, based on the evidence before me, as I have found that the respondent did not suffer a substantial inability to perform the essential tasks of her pre-accident employment and did not qualify for the IRBs after April 26, 2017 (when she began working at [a Long-Term care facility]), the deductions in the Schedule are not applicable.
20I note that the applicant’s reply submissions were due on June 17, 2019 but because the respondent did not file any submissions, the applicant in turn did not file any reply and asked that this hearing proceed as scheduled which it did.
Interest
21The applicant seeks an order for interest on the amount to be repaid.
22Section 52(5) of the Schedule allows the applicant to charge interest on the outstanding amount starting on the 15th day after it gave notice to CB of the amount outstanding and ending on the day the repayment is received in full. Interest is calculated at the bank rate in effect on the 15th day after notice was given.
23I find that interest is due in accordance with s. 52(5) of the Schedule.
Order
24For the reason provided above, I order:
- The respondent shall pay to the applicant the sum of $13,134.06 plus interest calculated in accordance with s. 52(5) of the Schedule.
Released: September 11, 2019
Cezary Paluch
Adjudicator
Footnotes
- The initial Order of Adjudicator Watt listed the amount of $20,800 as the requested re-payment amount. However, following the completion of the examination of the representative from the respondent’s employer, the applicant again wrote to the respondent on April 23, 2019 requesting the repayment of $13,134.06 in IRBs paid between April 26-December 8, 2017 or, in the alternative, $9,660.35 in IRBs being the total IRBs paid less the respondent’s post-accident income during that period.