Allstate Insurance Company of Canada v. Ravilotchanan, 2023 CanLII 9241

Citation: Allstate Insurance Company of Canada v. Ravilotchanan, 2023 ONLAT 21-003421/AABS

Licence Appeal Tribunal File Number: 21-003421/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:

Allstate Insurance Company of Canada

Applicant

and

Yogaranjini Ravilotchanan

Respondent

DECISION AND ORDER

VICE-CHAIR: D. Gregory Flude

APPEARANCES:

For the Applicant: Ian D. Kirby and Weis Noorani, Counsel

For the Respondent: Yogaranjini Ravilotchanan, Respondent Enio Zeppieri and Gregory Gryguc, Counsel

Heard by Videoconference: November 16 and 17, 2022

REASONS FOR DECISION AND ORDER

INTRODUCTION

1The respondent was involved in an automobile accident on February 25, 2016 and received a total of $41,597.02 in benefits from the applicant, Allstate Insurance Company of Canada (“Allstate”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). Allstate subsequently received information that the respondent was working during the time when she was receiving an income replacement benefit. Allstate also alleges that her work involved providing personal care services to a third party, service she alleged to Allstate she could not perform for herself because of the nature of the injuries. Allstate alleges that, the respondent received benefits as a result of the respondent’s misrepresentations, and it seeks the return of all funds paid to, or on behalf of the respondent.

2At its core, the dispute between the parties revolves around three versions of the events in question. The respondent signed a document, affirming its truth before a lawyer, admitting to all of the activities that Allstate relies on to justify repayment. It was after Allstate received a copy of this document that it began its investigation leading to this hearing. In a lawsuit arising out of the alleged activities involving the respondent and another insurance company, the respondent admitted to being paid for some of the alleged activities in her statement of defence. In her evidence before me, the respondent denied any involvement or receipt of payment whatsoever.

3The issue, then, comes down to the respondent’s credibility. The documents relied on by Allstate are sufficient to prove its case on prima facie basis, thereby requiring the respondent to lead evidence to rebut Allstate’s case. Since her evidence boils down to an admission that she lied in a formal declaration and that admissions made on her behalf are not true, but I should believe her now, my assessment of the respondent’s credibility is key. I do not believe her now. I find she is liable to repay the income replacement and attendant care benefits paid to her, however, she is not liable to repay the medical, rehabilitation benefits and assessments.

ISSUES IN DISPUTE

4The issues to be decided in the hearing are whether the respondent is required to repay the following benefits to the applicant:

1. Income replacement benefits in the amount of $23,600.00 which were paid for the period from March 3, 2016 to April 19, 2017;
2. Attendant care benefits in the amount of $5,970.92 which were paid for the time period of August 21, 2016 to March 4, 2017;
3. A medical benefit in the amount of $2,200.00 for physiotherapy services which was paid pursuant to a treatment plan submitted on March 2, 2016 by Medcore Health and Wellness;
4. A medical benefit in the amount of $200.00 for preparation of a form OCF-18 by Medcore Health and Wellness, the claim for which was submitted on June 4, 2016;
5. A medical benefit in the amount of $2,790.93 for physiotherapy services which was paid pursuant to a treatment plan submitted on June 4, 2016 by Medcore Health and Wellness;
6. A medical benefit in the amount of $200.00 for preparation of a form OCF-18 by Medcore Health and Wellness, the claim for which was submitted on October 6, 2016;
7. A medical benefit in the amount of $2,481.82 for chiropractic services which was paid pursuant to a treatment plan submitted on October 6, 2016 by Medcore Health and Wellness;
8. A medical benefit in the amount of $2,329.95 for psychological services which was paid pursuant to a treatment plan submitted on July 21, 2017 by Ex Cell Medical Diagnostics Inc;
9. A medical benefit in the amount of $100.00 for a completion of an Assessment of Disability Certificate by Dr. Bai-Singh Cheng, the claim for which was submitted on February 29, 2016; and,
10. A medical benefit in the amount of $1,721.31 for an In-Home Assessment for Attendant Care which was paid pursuant to a treatment plan submitted on June 15, 2016 by ARCG;
11. Is the applicant entitled to interest on any overdue payment of benefits?

5As stated above, the amounts in dispute total $41,597.02. This amount can be further broken down in the following manner to simplify the analysis:

a. $23,600 for income replacement benefits paid bi-weekly between March 3, 2016 and April 19, 2017. b. $5,970.92 in attendant care benefits paid monthly between August 2016 and March 2017. c. $12,026.10 for medical and rehabilitation benefits and assessments.

LAW

6Section 52 of the Schedule provides that an insured is liable to repay benefits that were paid by the insurer as a result of the former’s fraud or wilful misrepresentation, and the insurer may charge bank rate interest on the outstanding amount to be repaid starting on the 15th day after the insurer gives notice and ending on the day that the repayment is complete. Allstate bases its claim for repayment on the fact that the respondent perpetrated a fraud on it by receiving an income replacement benefit while she was working and being paid, and she received an attendant care benefit and medical benefits by misrepresenting her degree of impairment.

BACKGROUND AND ANALYSIS

7To understand the circumstances leading to the various versions of events with which I am dealing, it is necessary to understand the participants and their interrelationship. I will introduce them into the narrative below, but I caution that I did not hear directly from anyone other than the respondent about their involvement and nothing herein should be considered binding against third parties. This decision is based solely on the evidence I heard in this hearing.

Adjustment of the respondent’s claim

8The respondent is a qualified personal support worker (“PSW”), having qualified at Durham College in August 2004. At the time of the accident, she was working full time at Harmony Hills Care Community. She retained a lawyer within two weeks of the accident and filed both an Application for Accident Benefits (“OCF-1”) and a Disability Certificate (“OCF-3”). The OCF-1 indicated that she was working at Harmony Hills and the OCF-3 indicated that she was unable to perform the essential tasks of her employment. It identified that inability as “difficulty to do housekeeping activities” for an expected period for 9–12 weeks.

9The respondent sought medical and rehabilitation services following the accident. By March 2, 2016, she had attended Medcore Health and Wellness clinic (“Medcore”) and she then received a range of treatments and assessments, mainly physiotherapy and chiropractic with one psychological assessment. According to the respondent, she knew the owner of Medcore, Umesh Ponnampalam, because he had treated her with acupuncture for approximately three years before the accident. Mr. Ponnampalam will feature prominently later in these reasons.

10I note at this point that it does not appear from Medcore’s clinical notes and records that Mr. Ponnampalam was directly involved in the respondent’s treatment or recommendations for treatment arising from her current accident.

11In response to the OCF-3 indicating an inability to complete the essential tasks of her employment, Allstate paid the respondent an income replacement benefit from March 3, 2016 to April 19, 2017. It also received an application for and paid an attendant care benefit, commencing in August 2016 and ending in March 2017. The amounts and the duration of these benefits is not in dispute. The benefits were terminated following multidisciplinary insurer examinations in the late winter of 2016 and the early spring of 2017. The respondent returned to work with Harmony Hills after the benefits were terminated and has not appealed the denial of the benefits to this Tribunal.

The Investigation and Version 1

12Lisa Alcaro is a senior field investigator with Allstate. On or about October 29, 2018, she received a phone call from a colleague at Wawanesa Mutual Insurance asking her if she had an open claim under a specific policy number. By this time the respondent’s claim was not active, in the sense that she was not currently receiving benefits, but it was open as she had a right to claim benefits for up to ten years post-accident and there had been no full and final release. The Wawanesa colleague advised Ms. Alcaro that she should make a request for disclosure under federal privacy legislation. She did so by letter the next day.

13Wawanesa forwarded a statutory declaration executed by the respondent indicating that during the time during when the respondent had been paid an attendant care benefit and an income replacement benefit, she had attested to the fact that she had been working for a clinic called North Agincourt Healthcare providing PSW services to Wawanesa’s insured, T.R. The statutory declaration had been executed before a lawyer. Appended to it were copies of the respondent’s driver’s licence, a copy of her qualification certificate as a PSW issued by Durham College, and numerous time sheets signed by the respondent. There were also invoices showing the respondent as the service provider.

14In the statutory declaration the respondent stated that “I make this solemn declaration conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath.” The body of the document states: “[T.R.] is my only client. North Agincourt pays me as soon as they receive money from Wawanesa.” Other paragraphs affirm that the respondent submits timesheets authorized by T.R. and give two addresses where the services were provided. The respondent confirmed that this document was signed by her in front of a lawyer.

15One of the documents attached to the statutory declaration is a “Duration Sheet for Attendant care [sic] and House Keeping for a Month (Approximate)” with a notation that the listed durations may vary depending on the patient’s needs. There are 24 listed services including dressing, undressing, bath/showering, tub transfer, floor care, cooking, laundry, bed making, dishwashing, and garbage removal and dusting. Many of the items listed are also items the respondent had claimed she could not do in her in-home occupational therapy assessment and was, therefore, being paid an attendant care benefit for these services.

16Ms. Alcaro noted that there was an overlap between the times the respondent was receiving an income replacement and an attendant care benefit and the times she attested to be providing services to T.R. for compensation. Allstate retained counsel and served notice for an appointment for an Examination Under Oath pursuant to s. 33(2) of the Schedule. The respondent did not attend and has given no explanation for that refusal. Allstate then commenced this application for repayment of the benefits.

Wawanesa Litigation and Version 2

17On May 10, 2019 Wawanesa commenced litigation against North Agincourt Healthcare Inc., Umesh Ponnampalam, Nirothayan Theyagarajah (collectively “North Agincourt”) and the respondent for return of payments made to North Agincourt for PSW services that were allegedly billed but not provided to T.R. In her statement of defence and cross-claim to that litigation, the respondent stated that she had a non-exclusive employment contract with North Agincourt (para. 6.), that she did not sign timesheets amounting to $134,134 (para. 7) and that she “received only approximately $5000 in fees for the patient [T.R.].” (para. 10). In its statement of defence, North Agincourt identifies the respondent as “providing subcontracting services.” (para.5). In several paragraphs North Agincourt asserts that the respondent provided services between January 2016 and February 2017.

18As stated above, the respondent was paid an income replacement benefit from March 2016 through April 2017 and was provided attendant care services from August 2016 through 2017. It was this overlap that Ms. Alcaro noted in her review of the file.

19The Wawanesa litigation ended in and around June 8, 2022, when the parties entered into a full and final release whereby North Agincourt paid $45,000 to Wawanesa and the parties mutually released each other.

Evidence at the Hearing and Version 3

20The respondent’s evidence at the hearing boils down to the proposition that she was duped by Umesh Ponnampalam. She first began using the services of Medcore about three years before the accident when she attended for acupuncture. Her treatment provider was Ponnampalam. When he learned that she was a PSW he asked her if she wanted to do some work for a new company he was starting up. She told him that she was already working full-time and wasn’t really interested, but she didn’t completely close the door. She denied ever doing any work for him.

21The respondent said that, as a precursor to her providing PSW services for his new company, Ponnampalam asked her for a copy of her driver’s licence and her certificates of qualification. She also said that at each treatment visit he would ask her to sign forms. She did not look at or review these forms but relied on his representation that they were for her treatment. It was these documents, the driver’s licence, college certificates and signed timesheets that were attached to the statutory declaration. She denied giving any of them to the lawyers herself.

22In explaining the statutory declaration, the respondent testified that Ponnampalam appeared at her door one day with a friend. He said he had a problem that she could help him with and asked her to come with him. She got in the car and Ponnampalam drove her to a lawyer’s office where she was asked to sign the statutory declaration. She could not recall if the details were filled out in the document or if it was blank; she did not know whose handwriting was on the document; but she does admit that she signed it. She also acknowledged her signature on most, but not all, of the attached timesheets. Of the several she denied signing, I can see little to no difference in the signatures between those and the ones she admitted signing, but nothing turns on the existence of a few time sheets that she does not admit signing.

23On another day Ponnampalam appeared and asked the respondent to get into the car. He then took her to another lawyer’s office, the lawyer who represented her in the litigation. According to the respondent she met the lawyer, Ponnampalam paid a retainer, and she left. She had no knowledge of any other steps in the litigation and did not review the statement of defence and cross-claim the lawyer drafted on her behalf. Allstate points out that it is unlikely that Ponnampalam would authorize a crossclaim against North Agincourt. She then signed the settlement documentation and North Agincourt paid the settlement funds.

24During this time the respondent was being represented by another lawyer for her accident benefits claim. She has no explanation why she did not, at a minimum, take the statutory declaration to her own lawyer for review. She testified that she just signed what was put in front of her without reading it. She admitted in cross-examination that she is not in the habit of just signing documents without reading them, but, in addition to the statutory declaration, she had signed approximately 18 timesheets attesting to the fact that she had provided services to T. R., allegedly without reading them.

Findings

25The respondent’s version of events varies to suit the circumstances. I have no confidence in the truth of any of the evidence she gave at the hearing. Rather, in my view, the evidence discloses that she worked with North Agincourt during the time when she was receiving an income replacement benefit from Allstate. The extent of that work is not clear. It seems that she and North Agincourt entered into a scheme to get money from Wawanesa, but that scheme would not be successful without a kernel of truth, that is, that the respondent did provide some services to T.R. I accept that she most likely did not provide the alleged $134,134 worth of services reflected in the timesheets she signed. More specifically, I note she signed a timesheet reporting that she worked on the day of the accident, and every timesheet dated before the accident covers a period when she was working full-time with Harmony Hills.

26I do not accept the respondent’s evidence about the behaviour of the two lawyers involved. She essentially asks me to accept that the two members of the bar involved in this matter abrogated their professional responsibility to her, the one asking her to sign a statutory declaration without going over the document with her and asking her if it was true, the other representing her in litigation without ever conferring with his client.

27In the end, it appears that the admissions she made in the pleadings in the Wawanesa litigation are closest to the truth. She did act as a subcontractor for North Agincourt in providing PSW services to T.R., she was paid, although the amount is far from clear, and these services were provided during a period when she was receiving an income replacement benefit and an attendant care benefit from Allstate.

Repayment

28Allstate seeks repayment of three categories of benefits: medical and rehabilitation benefits, an income replacement benefit, and an attendant care benefit. At the hearing the focus was on the income replacement benefit and the attendant care benefit. I heard little evidence on the medical benefits, other than Ms. Alcaro’s evidence in cross-examination that Allstate was satisfied that the respondent needed the benefits when it approved them. As I noted above, Ponnampalam was described as the owner of Medcore, one of the corporate service providers. There was no evidence that he was involved in any of the other service providers who treated the respondent. The only alleged taint on entitlement to the medical benefits is the relationship between Ponnampalam and Medcore and this is insufficient for me to determine that a host of healthcare practitioners both at Medcore and elsewhere were somehow duped into recommending unneeded treatment for the respondent. I find that the respondent is not required to repay the $12,026.10 of medical benefits in dispute.

29The evidence discloses that the respondent was not only capable of working but did work during a period when she was receiving an income replacement benefit. Further, the work she was doing was work that she represented to Allstate that she couldn’t do for herself. My difficulty is the lack of evidence of the quantum of earnings she received. I lay the responsibility for this lack of evidence at the feet of the respondent for several reasons.

30There was nothing wrong with the respondent returning to some form of work during the period when she was receiving an income replacement benefit. The Schedule specifically provides for an attempt to return to work in s. 11. If, as she alleged in her pleadings, the respondent only earned $5,000 from providing PSW services to T.R., then it was open to her to be honest with Allstate about her attempts and she would still be entitled to some amount after allowance was made for this income. But she has not been honest. She has also made a statutory declaration that she performed approximately 6,700 hours of services for T.R. Even at minimum wage of $15.00/hr. this amounts to approximately $100,000. Earnings at this level would disentitle her to any income replacement benefit from Allstate.

31The respondent’s income information is solely within her control, and her failure to produce any document, for example, bank statements, covering the period, to show the limited extent of her income, leads me to conclude that she earned far more than the pleading asserts and certainly far more than no income she testified to before me. In the absence of evidence to the contrary, I find that the respondent wilfully or fraudulently misrepresented her ability to earn an income and failed to notify Allstate that she had returned to work. She is liable to repay the full amount of $23,600 paid to her as income replacement benefit.

32The respondent managed to convince an occupational therapist (OT) of her need for attendant care. Given that I have found she was providing exactly the same services to T.R. that she alleged she could not do for herself, I am left with two possible outcomes. The first is that the OT and the service provider were involved in a scheme to defraud Allstate in a similar manner to the scheme North Agincourt and the respondent carried out. I have absolutely no evidence of any such scheme. The second possibility is that the respondent feigned her need and did not require attendant care services but did avail herself of them when provided. Given the respondent’s various versions of events, I find the latter is a much more likely scenario. On that basis, I find she willfully misrepresented her need for an attendant care benefit, and I order her to repay it, in full, to Allstate.

COSTS

33Allstate seeks costs. Rule 19.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”) states: “Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.” The basis for Allstate’s claim for costs is the respondent’s lack of credibility, maintaining she was not liable up to and through the hearing.

34In my view, Rule 19 contemplates something other than the subject matter of the dispute as a basis for costs. It contemplates procedural behaviour that has delayed or lengthened the hearing. This is apparent in Rule 19.5 where the Tribunal is to consider misconduct that “was in breach of a direction or order of the Tribunal, … interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.” Indeed, in considering the chilling effect that a costs award made against a party simply for asserting a position that was ultimately unsuccessful would have on access to the Tribunal, I can find no basis for a costs award.

ORDER

35Based on the evidence before me at the hearing, I order the respondent to repay Allstate:

a. The income replacement benefits she received in the amount of $23,600, b. The attendant care benefit she received in the amount of $5,970.92, and c. Interest on the above amounts pursuant to s. 52(5) of the Schedule.

36The respondent is not required to repay $12,026.10 for medical and rehabilitation benefits and assessments.

37I decline to make any order for costs.