Certas Home and Auto Insurance Company v. Nanes
Licence Appeal Tribunal File Number: 22-001392/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:
Certas Home and Auto Insurance Company
Applicant
and
Kimberley Nanes
Respondent
DECISION
ADJUDICATOR: Ludmilla Jarda
APPEARANCES:
For the Applicant: Arash Vakili, Counsel
For the Respondent: Sabrina L. Seibel, Counsel
HEARD: By Written Submissions
OVERVIEW
1Kimberley Nanes (the “respondent”) was involved in an automobile accident on December 6, 2019 and sought benefits from Certas Home Auto Insurance Company (the “applicant”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant paid income replacement benefits (“IRB”) to the respondent following the accident. It claims that it overpaid IRB to the respondent and that it requested a repayment of the benefits paid. The respondent refused to repay the benefits, and 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 entitled to a repayment of $2,114.29 relating to its payment of IRB for the period of April 18, 2021 to May 31, 2021?
- Is the respondent entitled to $1,546.46 for psychological services, proposed by ABI Concussion Clinic in a treatment plan/OCF-18 (“treatment plan”) dated March 9, 2021?
- Is the applicant entitled to interest on any overdue payment of benefits.
4The applicant also introduced in its written hearing submissions a claim for costs against the respondent.
RESULT
5For the reasons that follow, I find that:
- The applicant is entitled to a repayment of IRB in the amount of $1,828.56, with interest in accordance with s. 52(5) of the Schedule, effective 15 days from June 24, 2021.
- The respondent is not entitled to the disputed treatment plan.
- The applicant is not entitled to costs.
ANALYSIS
Repayment of Income Replacement Benefits (“IRB”)
6To receive payment for pre-104-week IRB under s. 5(1) of the Schedule, the respondent must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. She must identify the essential tasks of her employment, which tasks she is unable to perform, and to what extent she is unable to perform them. The respondent bears the burden of proving, on a balance of probabilities, that she meets the test and criteria noted above.
7Section 7(1) of the Schedule establishes that weekly IRB payments are calculated by using 70 per cent of the insured person’s base amount less the total of all other income replacement assistance for the particular week the benefit is payable. Section 4(1) sets out that the base amount is the insured person’s gross annual income divided by 52.
8Moreover, in accordance with s. 7(3) of the Schedule, an insurer may also deduct 70 per cent of any gross employment income from the weekly IRB payable to an insured person received during the period in which he or she is eligible to receive IRB.
9Section 52 of the Schedule concerns the repayment of benefits. Under s. 52(1)(a), a person is liable to repay to the insurer any benefit that is “paid to the person” as a result of an “error on the part of the insurer”, the insured person or any other person, or as a result of a wilful misrepresentation or fraud.
10Section 52(2) and (3) provide the timelines for repayment requests if a person is liable to repay an amount to an insurer. The insurer shall give the person notice of the amount that is required to be repaid. If the notice required is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount unless it was originally paid to the person as a result of wilful misrepresentation or fraud.
11When the Tribunal is asked to make a determination pursuant to s. 52 of the Schedule, the burden of proof lies with the insurer.
12Neither party disputes that the respondent was eligible for IRB and received a weekly IRB in the amount of $400.00 per week from December 14, 2019 to May 31, 2021.
13On April 22, 2021, the respondent