Licence Appeal Tribunal File Number: 22-007844/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:
Aviva Insurance Company
Applicant
and
Muhammad Asghar
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
Samuel Davies, Counsel
For the Respondent:
No Submissions Filed
HEARD:
By way of written submissions
OVERVIEW
1Muhammad Asghar (the “respondent”) was involved in an automobile accident on March 23, 2021 and sought benefits from Aviva Insurance Company (“the applicant”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant paid income replacement benefits (“IRB”) to the respondent following the accident that it alleges resulted in an overpayment due to the respondent’s return to work. After a failed attempt to secure repayment from the respondent, the applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
Is the applicant (insurer) entitled to a repayment of $5,184.61 ($5,984.61 less $800.00 repaid) relating to its payment of IRB from March 31, 2021 to September 24, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
4I have adjusted the above total amount of IRB repayment being sought by the applicant and the applicable time period from what is listed in the Case Conference Report and Order (“CCRO”) dated March 16, 2023 that set this matter down for a written hearing. In its submissions, the applicant notes that the respondent has repaid $800.00 of the overpaid amount, and that the time period during which the IRB was overpaid was March 31, 2021 to September 24, 2021, not March 29, 2021 to September 24, 2021 as specified in the CCRO.
RESULT
5The applicant is entitled to repayment of IRB from the respondent in the amount of $5,184.61 ($5,984.61 less $800.00 repaid), in accordance with ss. 37(2)(e) and 52(1)(a) of the Schedule. Interest is also applicable on this amount, pursuant to ss. 52(5) and (6) of the Schedule.
ANALYSIS
Proceeding with the Hearing in the Absence of the Respondent
6I find that the Tribunal has met its reasonable notice obligations. Therefore, I am proceeding with this written hearing in the absence of the respondent.
7Proceeding with a written hearing where a party fails to participate, under s. 7(2) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 (“SPPA”), requires the Tribunal to be satisfied that the absent party received notice of the written hearing that complies with ss. 6(1) and 6(4) of the SPPA.
8A case conference was held with regard to this application on March 13, 2023. The respondent did not attend this case conference, nor did he have legal representation attend the event on his behalf. In the absence of the respondent, a written hearing was ordered by the Tribunal in the resulting CCRO dated March 16, 2023. This CCRO established the issues in dispute and set a timeline for both parties regarding their productions and submissions.
9On March 15, 2023, a Declaration of Representative (“DoR”) form was filed with the Tribunal on behalf of the respondent.
10The Tribunal sent a Notice of Written Hearing (“NoWH”) to both parties on April 25, 2023. This NoWH set a written hearing date of December 22, 2023. As a result of the timeline established by the CCRO and the NoWH, the applicant’s submissions were due by November 22, 2023 and the respondent’s submissions were due by December 8, 2023. The applicant’s reply submissions, if any, were due by December 15, 2023.
11The applicant filed its submissions on November 22, 2023, in accordance with the deadline set by the CCRO and the NoWH. The respondent failed to file his submissions. Tribunal records indicate that the Tribunal attempted to contact the respondent regarding these missing submissions on December 13, 2023, but there is no notation that the respondent replied.
12While the respondent has not meaningfully participated in the Tribunal process with regard to this application, there is no indication of any communication difficulties between him and the Tribunal. He also took the step of retaining counsel, as evidenced by the DoR filed with the Tribunal on March 15, 2023.
13There is also no evidence that the respondent’s contact information changed during the course of this process or was otherwise incorrect in Tribunal records. If the respondent’s contact information did change, he had an obligation under Rule 4.4 of this Tribunal’s Rules to provide the Tribunal with the correct contact information in writing.
14I am also satisfied that neither party requested a change of format from a written hearing under s. 6(4)(b) of the SPPA.
15For the above reasons, I find that the respondent knew of this proceeding and chose not to participate. As a result, I am satisfied that the Tribunal has met its notice obligations pursuant to s. 7(2) of the SPPA and is in compliance with ss. 6(1) and 6(4) of the SPPA.
IRB Repayment
16I find that the applicant is entitled to the repayment of $5,184.61 ($5,984.61 less $800.00 repaid) in IRB paid to the respondent from March 31, 2021 to September 24, 2021, due to the respondent’s return to work. The applicant is also entitled to interest on this amount.
Notice of repayment request
17I find that the applicant has satisfied the repayment notice requirements as specified in ss. 52(2) and 52(3) of the Schedule.
18An insurer is permitted to claim the repayment of IRB in certain situations and subject to certain conditions as established by the Schedule. Section 52 addresses repayments to an insurer, with s. 52(2) providing that an insurer must give an insured person notice of the amount that is required to be repaid.
19Section 52(3) mandates that such notice be provided within 12 months of the payment of the amount that is to be repaid, unless the amount was originally paid as a result of wilful misrepresentation or fraud.
20In submissions, the applicant argues that a letter sent by Aviva to the respondent on October 7, 2021 provided the necessary and essential information regarding its repayment request to meet the notice requirements of s. 52.
21The applicant submits that this notice letter meets all relevant criteria. This letter identified IRB as the overpaid benefit; identified March 31, 2021 to September 24, 2021 as the period of time for which the IRB repayment was being sought; specified the amount of the repayment being sought; and was sent well within the 12-month notice period.
22As noted above, the respondent has not filed submissions.
23I agree with the applicant. The October 7, 2021 notice letter is compliant with the repayment notice provisions established in s. 52 of the Schedule.
24As a result, the applicant may seek repayment of IRB from the respondent.
Resumption of employment and IRB repayment
25I find that the respondent returned to work directly following the subject accident on March 23, 2021 and was therefore not entitled to the IRB paid by the applicant. As a result, the applicant is entitled to repayment of IRB in the total of $5,184.61 ($5,984.61 less $800.00 repaid) relating to its payment of IRB to the respondent from March 31, 2021 to September 24, 2021, plus interest.
26Section 37(2) of the Schedule details that an insurer shall not discontinue the payment of a specified benefit to an insured person unless a number of factors are met. Section 37(2)(e) establishes one of these factors as being the insured person’s resumption of “his or her pre-accident employment duties.”
27The applicant submits that IRB was paid to the respondent in error at a quantum of $236.46 weekly for the time period between March 31, 2021 to September 24, 2021 (amounting to $5,984.61 in total). This IRB quantum was based on an S&T Accounting Report dated May 28, 2021 that was submitted to the insurer by the respondent on June 14, 2021.
28On June 16, 2021, the insurer approved IRB retroactively due to this report. The insurer noted in this approval letter that the insurer would be entitled to repayment of any money paid in error, and that the respondent was to notify the insurer immediately if he were to return to work. IRB was then paid on a biweekly basis until September 24, 2021.
29By August 3, 2021, the respondent provided the insurer with his bank statements for March 1, 2021 to June 30, 2021. The insurer noted that these statements seemed to reflect ongoing work income from the respondent’s two pre-accident employers in Lyft and Uber, and implied an immediate return to work post-accident during the time he was receiving IRB.
30As a result of obtaining the above information, the insurer notified the respondent in correspondence dated August 3, 2021 that it was taking the position that IRB was not payable in accordance with s. 37(2)(e) of the Schedule due to his immediate return to work. This was followed up the IRB repayment notice letter detailed above that was sent to the respondent on October 7, 2021.
31I agree with the applicant and accept this argument, which it has substantiated by tendering all of the documents referenced above as evidence. It is readily apparent that the respondent returned to work directly following the subject accident and did not inform the insurer of this fact. IRB was therefore paid in error. Accordingly, the applicant is entitled to a repayment in full, plus interest.
32In addition, the respondent has not contested the essential facts of this dispute. While the respondent has not filed submissions or otherwise participated in the Tribunal process, he did agree to repay an IRB overpayment in the amount of $5,984.61 in an agreement that he signed with Aviva dated October 28, 2022. This payment plan obligated the respondent to pay $200.00 per month to Aviva in 29 instalments along with a single instalment of $184.61, which would in total account for the entire IRB overpayment amount.
33However, based on the evidence before me, I conclude that the respondent failed to provide postdated cheques as required by this agreement, or otherwise fulfill his agreed-upon repayment obligations. He sent $200.00 cheques to Aviva on four occasions from November 2022 to June 2023, which accounts for the $800.00 that the respondent has removed from the total amount of IRB repayment being sought.
34For the above reasons, the applicant is entitled to the repayment of $5,184.61 ($5,984.61 less $800.00 repaid) in IRB paid to the respondent in error from March 31, 2021 to September 24, 2021, plus interest.
ORDER
35The respondent is ordered to repay $5,184.61 ($5,984.61 less $800.00 repaid) in overpaid IRB to the applicant, pursuant to ss. 37(2)(e) and 52(1)(a) of the Schedule. Interest is also applicable, in accordance with ss. 52(5) and (6) of the Schedule.
Released: March 18, 2024
Brett Todd
Vice-Chair