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:
J. V. M.
Applicant
and
Aviva General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION and ORDER
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Jeton Memeti, Paralegal
For the Respondent:
Louise Kanary, Counsel
HEARD: In Writing
July 29, 2019
OVERVIEW
1The applicant (“J.V.M.”) was involved in a motor vehicle accident on May 6, 2017 and sought benefits from the respondent (“Aviva”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Aviva paid various benefits to J.V.M., including an income replacement benefit (“IRB”).
2Aviva later believed that J.V.M. was working during a period in which she was also receiving the IRB, and thus she was not entitled to $6,578.67 of the benefit corresponding to the period of May 13, 2017 to December 19, 2017.
PRELIMINARY ISSUE
3The parties have defined the preliminary issue as follows:
i. Pursuant to section 52(3) of the Schedule, is the respondent barred from claiming repayment of IRBs?
4After a decision is rendered on the preliminary issue, the Tribunal will schedule a second case conference to (a) address the substantive issues in dispute and (b) if necessary, schedule a formal hearing.
FINDING
5Based on a review of the evidence, I find that Aviva is not barred from claiming a repayment of IRBs in accordance with section 52(2) of the Schedule. As such, Aviva can seek repayment of the IRBs in the amount of $6,578.67.
LAW
6Section 52 of the Schedule states that a person is liable to repay the insurer if any benefit is paid to the person as a result of an error, wilful misrepresentation or fraud.1
7The insurer must give notice within 12 months after the payment is made otherwise the person ceases to be liable.2 The 12-month stipulation does not apply if the benefit was paid as a result of wilful misrepresentation or fraud.3
ANALYSIS
8In order to decide this issue and whether Aviva is entitled to make a claim for repayment of IRBs, I need to answer three questions. First, was J.V.M. employed during the time period in dispute? Second, was adequate notice provided to her? Third, was the notice provided pursuant to section 52(3)?
9Aviva bears the onus to prove, on a balance of probabilities, that it is not barred from claiming a repayment of IRBs.
Payment of IRBs
10On September 29, 2017, following receipt of the election of income replacement, non-earner or caregiver benefit form, Aviva paid IRBs to J.V.M. in the amount of $8,000.00 for the period May 13, 2017 to September 29, 2017, and advised that bi-weekly payments in the amount of $800.00 would follow.
11On October 26, 2017, Aviva notified J.V.M. that due to a system conversion, a one-time advanced payment of IRBs would be made in the amount of $3,200.00 for the period October 28, 2017 to December 23, 2017. The regularly bi-weekly payments would recommence on December 24, 2017 and continue bi-weekly thereafter as long as J.V.M. continued to be entitled in accordance with the Schedule.
Was J.V.M. working during the period of May 13, 2017 to December 19, 2017?
12I find J.V.M. was working for the period of May 13, 2017 to December 19, 2017 for the following reasons.
i. Aviva submits that at the time of the accident, J.V.M. was employed as a picker/packer/scanner [at a shoe store],4 a position obtained through Adecco Employment Services Limited.5 J.V.M. does not contest this fact.
ii. There is no dispute between the parties that J.V.M. did not work during the period of May 13 to July 23, 2017 or from September 11 to December 19, 2017. A review of J.V.M.’s pay stubs from Adecco Employment Services for the post-accident period July 24, 2017 to September 10, 2017, confirmed J.V.M. had returned to work during that time.
13As a result, Aviva retained the accounting firm Meaden & Moore to calculate whether there was any potential overpayment of income replacement benefits paid to J.V.M. during the period May 13, 2017 to December 19, 2017.
Meaden & Moore Accounting Report
14On July 6, 2018, Aviva sent a copy of the accounting report6, which I find to be persuasive. J.V.M.’s earnings for the period of January 8, 2017 to December 31, 2017 total $10,568 up to September 10, 2017; which is consistent with the total amount reported in J.V.M.’s 2017 Income Tax Return. Based on the earnings, the following calculations were made:
i. $241.33 per week from May 13 to July 23, 2017;
ii. $143.50 per week from July 24 to August 6, 2017;
iii. $0.00 per week from August 7 to September 3, 2017;
iv. $2.44 per week from September 4 to September 10, 2017; and
v. $241.33 per week from September 11 to December 19, 2017.
15According to the accounting report, the total amount of IRBs payable for the period from May 13, 2017 to December 19, 2017 is $6,221.33. Aviva made IRB payments of $12,800 to the stoppage date of December 19, 2017. Accordingly, the resulting overpayment of IRBs for the period from May 13, 2017 to December 19, 2017 totals $6,578.67.
16J.V.M. did not provide me with her own accounting report. Despite this, I find the Meaden & Moore report persuasive as the calculation of IRBs were based on information provided by J.V.M.
Did Aviva provide notice to J.V.M. as required by the Schedule?
17Even if J.V.M. was employed, section 52 (2) of the Schedule requires Aviva to provide notice to J.V.M. that it is seeking a repayment. I find that Aviva provided sufficient notice as required by the Schedule for the following reasons.
18Aviva provided J.V.M. with a copy of the Meaden & Moore accounting report and a letter to J.V.M. to provide the notice as required under section 52 (2) of the Schedule. It stated the amount that is required to be repaid and the reason for the overpayment.
19The July 6, 2018 letter provided an explanation to J.V.M. that there had been an overpayment in the amount of $6,578.67 for income earned at the employer from May 13 to December 19, 2017, and that, in accordance with section 52 of the Schedule, Aviva seeks payment of the full amount.
20The letter provided J.V.M. with a contact person’s information. I find the letter clearly set out what Aviva is seeking from J.V.M.
21In a letter dated August 13, 2018 J.V.M. responded to Aviva. In her letter J.V.M. states that there was no overpayment as “the calculation was done by Aviva and not J.V.M.”. In addition, that in accordance with section 52(3) of the Schedule, the first payment was for May 13, 2017 and the notice letter is dated July 6, 2018, contending that the notice letter was more than 12 months since the payment was made. J.V.M.’s letter further notes the requirements regarding the 12-month notice under section 52(3).
Was the notice provided by Aviva in accordance with section 52(3)?
22Section 52 (3) of the Schedule states that the obligation to repay an overpayment does not apply unless a notice, as required by section 52 (2), is given within 12 months after the overpayment was made.
23Aviva contends that pursuant to section 52(2)(a), a letter, dated July 6, 2018, was sent to J.V.M. enclosing a copy of the accounting report and advising that there was an overpayment in the amount of $6,578.67 for the period May 13, 2017 to December 19, 2017.
24J.V.M. submits that the first income replacement benefit payment is for May 13, 2017, and the notice letter, dated July 6, 2018, was delivered more than 12 months since the payment was made. J.V.M. also contends that Aviva retained an accounting firm “without cause or reason”, or without providing J.V.M. an opportunity to obtain her own accounting report. I disagree with both of J.V.M.’s claims for the following reasons.
25According to section 52(3), notice must be given with 12 months after the IRB payment is made. The period of overpayment is July 24 to December 19, 2017. Aviva provided notice of the overpayment to J.V.M. on July 6, 2018. The notice letter was clearly provided within the 12-month period of the overpayment period.
26There is no requirement under section 52(3) that the notice must be given within 12 months of the first payment (my emphasis). The requirement is for notice to be given within 12 months “after the payment of the amount that is to be repaid”. J.V.M. wrongly interprets section 52(3) to mean that notice is required 12 months after the first payment.
27The period of overpayment is not only May 13, 2017, it is a period that extends to December 19, 2017. The notice requirement under section 52(3) does not limit the period that an overpayment can be claimed. My plain reading interpretation of section 52(3) is that the repayment claim may relate to an extended period of time, and as such, notice of repayment must be given within the subsequent 12 months of that period.
28I now turn to J.V.M.’s claim regarding Aviva’s accounting report. At any time during the proceeding, subject to the deadlines that were set, on consent, at the case conference, J.V.M. or her legal representative could have notified Aviva and the Tribunal that she intended to obtain her own accounting report. At no such time is there any indication or evidence that J.V.M. was not provided an opportunity to obtain her own accounting report.
29This proceeding was scheduled over one year after the Meaden & Moore accounting report was provided to J.V.M., which I find is a more than reasonable period for J.V.M. to have obtained her own accounting report.
30For the reasons above, I find the notice letter was given within 12 months after the overpayment was made, as required in section 52 (3). Therefore, Aviva is not barred from making a claim for repayment of IRBs.
ORDER
31By the power vested in me by the Tribunal, I order that a case conference be scheduled to address Aviva’s claim for repayment of the IRB, and to address the substantive issues in dispute.
Released: January 24, 2020
_________________
Derek Grant
Adjudicator