Citation: W.E. vs. Aviva Insurance Company, 2020 ONLAT 19-003285/AABS & 19-009617/AABS
Released: July 24, 2020
Tribunal File Number: 19-003285/AABS & 19-009617/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:
W.E.
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: No submissions
For the Respondent: Marcin J. Panasewicz
Heard by way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on June 3, 2018 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for income replacement benefits (“IRBs”) and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute. In addition, the respondent claimed entitlement to a repayment of IRBs from the applicant, which he has not repaid.
ISSUES
2The issues in dispute in this hearing are:
i. Should the application related to 19-003285/AABS be dismissed as abandoned for failure to make submissions pursuant to the July 31, 2019 Order?
ii. Is the applicant entitled to income replacement benefits (“IRBs”) in the amount of $201.19 per week for the period spanning January 2, 2019 to-date and ongoing?
iii. Is the applicant entitled to interest on overdue payments?
iv. Is the respondent entitled to a repayment of IRBs in the amount of $1,566.81?
RESULT
3The applicant’s claim is dismissed as abandoned.
4The respondent is entitled to a repayment of IRBs in the amount of $1,566.81, plus interest.
BACKGROUND
5The applicant was involved in an accident and unable to work as a result of the injuries he sustained. The respondent paid the applicant IRBs on account of this disability, at the rate of $201.19 per week for the period spanning from one-week post-accident to January 9, 2019. The applicant disagreed with the respondent’s decision to terminate his IRBs and, on March 21, 2019, filed an Application with the Tribunal, disputing the respondent’s decision to deny those benefits.
6A case conference occurred on July 31, 2019 whereby the dispute was referred to a hearing in writing on consent of the parties. The hearing in writing was scheduled to start with submissions by the applicant, due October 4, 2019. The applicant made no submissions on or before the October 4, 2019 due date.
7In response, the respondent wrote the applicant on October 22, 2019 to advise that no submissions were received and that it was unable to make responding submissions as a result. The applicant replied on the same day and provided documents to the respondent pertaining to his claim. However, he made no submissions on the issues in dispute nor did he advise of any pending submissions. The respondent replied on October 24, 2019 to confirm receipt of the applicant’s letter and to advise that, if the applicant intended to continue with his claim, that he could contact the Tribunal to request new dates for submissions.
8The Tribunal wrote to the parties on October 24, 2019 via email and reminded the parties that no submissions were received for the hearing. The applicant made no response to the Tribunal’s email.
9The Tribunal sent a Notice of Continuation of Hearing (“the Notice”) to the parties on April 2, 2020. It noted that no submissions were received for the hearing in writing and Ordered new submission dates for the parties, starting with the applicant’s initial submissions due by June 5, 2020. The Notice also sought submissions from the parties as to whether the application should be dismissed as abandoned for failure to make submissions pursuant to the July 31, 2019 Order.
10Meanwhile, the respondent determined that it had overpaid IRBs to the applicant. It filed an application with the Tribunal on August 27, 2019 to resolve the overpayment dispute. The file number attached to the repayment issue is 19-009617/AABS. The parties participated in a case conference on April 15, 2020 for that application. On consent, the parties agreed to add the repayment issue to the hearing for 19-003285/AABS. The parties agreed to maintain the submission dates provided in the Notice.
11The applicant made no submissions on or before the June 5, 2020 deadline provided by the Notice. The respondent on the other hand, made its submissions in accordance with the Notice.
THE APPLICATION UNDER FILE NUMBER 19-003285/AABS IS DISMISSED
12The application under file number 19-003285/AABS is dismissed as abandoned because the applicant failed to provide any submissions or evidence to support his claim for IRBs and interest.
13I find that the applicant’s inaction is evidence he has abandoned his claim. Pursuant to rule 3.4(d) of the Common Rules of Practice & Procedure (the “Rules”), the Tribunal may dismiss an appeal without a hearing if the applicant is found to have abandoned the proceeding.
14Pursuant to rule 3.5, prior to dismissing a matter without a hearing, the Tribunal must 1) give parties notice of its intention to dismiss, 2) provide the reasons for its intentions to dismiss, 3) inform the parties of their right to make written submissions to the Tribunal, and 4) consider any written submissions provided.
15I find the Tribunal has satisfied its obligations provided in rule 3.5. The Notice dated April 2, 2020 asks the parties to make submissions on the issue as to whether the application should be dismissed as abandoned for failure to make submissions pursuant to the July 31, 2019 Order. The addition of the issue to the hearing provides the notice of intention to dismiss as well as the reasons, as required by rule 3.5. Further, the parties were provided a schedule to make written submissions on the issues, satisfying the third obligation in rule 3.5. I have received submissions from the respondent only and have considered them, satisfying the fourth obligation.
THE APPLICANT HAS FAILED TO MEET HIS BURDEN TO PROVE ENTITLEMENT
16In the alternative, I find that the applicant has failed to meet his onus to prove entitlement to IRBs. The onus is on the applicant to prove entitlement to IRBs by establishing that he is substantially unable to perform his pre-accident work tasks as a result of accident-related injuries. He has not provided any submissions or led any evidence in support of his claim for IRBs and thus, he has failed to meet his onus.
REPAYMENT
17Pursuant to section 52(1), a person is liable to repay the insurer any benefit that is paid as a result of an error on the part of the insurer or any other person. Pursuant to section 52(2)(a), the insurer shall give the person notice of the amount that is required to be repaid. Lastly, pursuant to section 52(3), the notice described in section 52(2) must be given to the person within twelve months after the benefit was paid in error.
18I have reviewed the submissions and evidence and I find the applicant must repay the respondent $1,566.81.
Was there an overpayment?
19I agree with the respondent and find the applicant was overpaid IRBs.
20The respondent made an error when it calculated the quantum of the applicant’s IRB payment. According to Part 3 of the OCF-2 dated August 9, 2018, the applicant sought benefits according to his gross income for the 52 weeks prior to the accident. The OCF-2 stated that the applicant had earned a total of $10,634.50 in gross income over the last 52 weeks before the accident however, it also noted that he only worked 37 of the 52 weeks. On that information, the respondent calculated the applicant’s gross weekly income to be $287.41 by dividing the gross income reported on the OCF-2 by 37 weeks, the number of weeks worked by the applicant in the past year. The gross weekly amount calculation was incorrect because it allocated the applicant’s gross annual income over a period of 37 weeks instead of 52. Pursuant to section 4 of the Schedule, the applicant’s gross weekly income is the applicant’s gross annual income divided by 52, regardless of the number of weeks the applicant worked during the year proceeding the accident. The correct calculation, as submitted by the respondent, is $10,634.50 divided by 52 weeks, for a weekly base amount of $204.51. The initial calculation inflated the applicant’s gross weekly income and, as a result, his weekly entitlement to IRBs was inflated because IRBs are derived from the applicant’s gross income.
Is the respondent compliant with section 52?
21I find that the overpayment notice dated August 14, 2019 satisfies the obligations outlined in section 52. The first payment of IRBs was issued on or after August 22, 2018.Thus, the overpayment notice was delivered within a year of the overpayment. The notice alerts the applicant that IRBs were overpaid during the period spanning June 10, 2018 to January 23, 2019.
22The overpayment notice is valid despite the imperfection. The notice correctly advised that IRBs were overpaid at a rate of $58.03 per week. The total repayment amount noted in the notice was $1,890.12, rather than the $1,566.81 claimed at this hearing. The overpayment notice remains valid because, despite the imperfection, it adequately advises the applicant of the respondent’s position with respect to his claim for IRBs and the overpayment discovered by the respondent. The overpayment notice is substantially correct in that it was given within one year of payment, notified the applicant of the correct weekly overpayment, and the period in which it was overpaid. The notice provides the applicant with enough information that he may decide to comply or challenge the respondent’s decision.
INTEREST
23The respondent is entitled to charge interest on the outstanding balance to be repaid starting on the 15th day after the notice is given, pursuant to section 52(5) of the Schedule.
CONCLUSION AND ORDER
24The applicant has abandoned his claim for IRBs and his claim is dismissed as a result. In the alternative, the applicant has failed to meet his onus to prove entitlement to IRBs and interest and thus, the claim must fail.
25The respondent overpaid IRBs to the applicant and is entitled to a repayment in the amount of $1,566.81, plus interest pursuant to section 52(5).
Released: July 24, 2020
___________________________
Brian Norris
Adjudicator