Tribunal File Number: 18-000350/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:
Dominion of Canada General Insurance Company (Travelers)
Applicant
and
AS
Respondent
DECISION
ADJUDICATOR: Stephanie Kepman
APPEARANCES:
For the applicant: Christopher McCormack, Counsel For the respondent: AS, not present and not represented
Heard in Person on: September 24, 2018
OVERVIEW
1On January 19, 2018, the applicant (“Dominion of Canada General Insurance Company - Travelers”) filed an application for resolution of a dispute.
2Travelers asserts that the respondent (“A.S.”) received and was paid income replacement benefits (“IRB”) in relation to an accident for an accident on December 1, 2014, under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Travelers asserts that A.S. was overpaid IRBs and therefore is entitled to repayment of the IRB, pursuant to section 52 of the Schedule.
ISSUES
3Specifically, the disputed claim is as follows:
(i) Is the respondent liable to repay the applicant income replacement benefits he received totalling $10,424.23 for the period from April 26, 2015 to December 1, 20151?
(ii) Is the applicant entitled to interest?
RESULT
4Based on the evidence before me, I find that:
(i) Travelers is entitled to repayment of the IRB as set out below.
(ii) Travelers is entitled to interest.
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 error on the part of the insurer or insured, 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
6During an in-person hearing held on September 24, 2018, I heard submissions from Travelers counsel, Mr. Christopher McCormac, who presented oral evidence from his client, D.S. The respondent, A.S., was not present. A Case Conference was held on May 8, 2018, where the respondent also did not participate.
7The applicant produced evidence of service of both the notice of the Case Conference and the hearing. The respondent had served the applicant via courier mail and email mail and provided evidence of such. The respondent had been served at the address used for his original accident claim, which he had been actively using. He had also been actively using the email address he was contacted at.
8I heard evidence from Travelers’ representative, D.S. D.S. testified that she is a technical adjuster and has been employed as an adjuster for nine years and in her current position for four. D.S. was not the adjuster who handled the respondent’s initial application for accident benefits.
9However, it is uncontroverted that the respondent received IRB payments from the applicant in the amount of $331.68 beginning on December 8, 2014 until December 1, 2015. The respondent provided evidence that the applicant received most of his IRBs in one, lump-sum payment on January 21, 2016 in the amount of $10,424.23.
10D.S. testified that she took over and reviewed the respondent’s IRB file in 2016, after the applicant had received the respondent paystubs for the period of March 2, 2015 to July 5, 2015. The respondent provided copies of these paystubs, which demonstrated that the respondent had returned to unmodified, full-time employment.
11This led to the applicant requesting the respondent to attend an Examination Under Oath (EUO). This took place on March 4, 2016. The transcripts from this examination were provided to me by the applicant. This evidence shows that the respondent was aware that an IRB overpayment was made. The respondent also testified that he intended to repay any overpayment that he received. This was stated in the EUO transcripts.
12D.S. testified that she sent the respondent two letters on July 18, 2016 regarding the results from his EUO. Copies of said letters were provided to me. These letters indicated that the EUO had demonstrated that the respondent was no longer entitled to IRBs as of March 15, 2015 and that the respondent was claiming $12,414.37 in repayment of said benefits. This amount was adjusted in the application.
13D.S. testified that she sent a second notice regarding the overpayment to the respondent’s counsel by fax on August 24, 2016.
14D.S. also testified that her colleague, J. L., a claims professional, tried to contact the respondent’s counsel via email on several occasions regarding the IRB repayment.
15D.S. tried to contact the respondent by email on again on December 6, 2017, regarding his IRB overpayment and eventually pursued an application to the Tribunal.
ANALYSIS AND DECISION
16Section 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 error on the part of the insurer or the insured, 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.
17Based on the evidence before me, the benefits paid to the respondent were paid in error. The applicant has not provided evidence in the EUO that the respondent wilfully misrepresented himself in his IRB claim or committed fraud. However, there was an error that led to the respondent being overpaid IRBs.
18Travelers has satisfied me that it overpaid the respondent in error. It has also satisfied me that it contacted the respondent within twelve months after the payment of the amount that is to be repaid. The IRB payments were made until December 1, 2015 and requests for repayment were made on July 18, 2016 and August 24, 2016.
INTEREST
19Section 52(5) of the Schedule permits an insurer to charge interest on the outstanding balance of overpaid benefits beginning on the 15th day after the repayment notice is given and ending on the day repayment is received in full, calculated at the Bank of Canada rate in effect on the 15th day after the notice of repayment is given.
20I find that the respondent is liable to pay interest on his overpayment of benefits to Travelers at the prescribed rate.
CONCLUSION
21I find as follows:
(i) Travelers is entitled to receive an IRB repayment totalling $10,424.23, for the period from April 26, 2015 to December 1, 20152.
(ii) Travelers is entitled to interest.
Released: March 15, 2019
___________________________
Stephanie Kepman
Adjudicator