Citation: Ktit v. TD General Insurance Company, 2024 ONLAT 22-006841/AABS

Licence Appeal Tribunal File Number: 22-006841/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:

Lamia Ktit

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Maria Makarova, Paralegal

For the Respondent:

Sean Van Helden, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Lamia Ktit, the applicant, was involved in an automobile accident on October 18, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $2,116.76 for physiotherapy services, proposed by Focus Physiotherapy in a treatment plan submitted January 12, 2021?

iii. Is the applicant entitled to $2,116.76 for physiotherapy services, proposed by Focus Physiotherapy in a treatment plan submitted February 11, 2021?

iv. Is the applicant entitled to $2,116.76 for physiotherapy services, proposed by Focus Physiotherapy in a treatment plan submitted August 25, 2020?

v. Is the applicant entitled to $2,049.52 for physiotherapy services, proposed by Focus Physiotherapy in a treatment plan submitted January 12, 2021?

vi. Is the applicant entitled to $2,200.00 for an orthopaedic assessment proposed by Verity Medical Assessments Inc. in a treatment plan submitted November 18, 2021?

vii. Is the applicant entitled to $112.03 for prescription medical expenses, submitted on a claim form (“OCF-6”) dated November 10, 2021?

viii. Is the applicant entitled to interest on any overdue payment of benefits?

ix. Is the respondent entitled to a repayment of $4,410.00 relating to its payment of income replacement benefits?

RESULT

3The applicant has not demonstrated on a balance of probabilities that he is entitled to treatment beyond the $3,500.00 limit of the Minor Injury Guideline. As such, he is not entitled to the treatment plans or OCF-6 in dispute, and no interest is payable.

4The respondent is not entitled to a repayment of $4,410.00 relating to its payment of income replacement benefits.

ANALYSIS

Application of the Minor Injury Guideline

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

6An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

7The applicant’s position is that his injuries are not minor as he developed chronic pain with functional limitations as a result of the accident. The respondent disagrees.

8I find that the applicant has not proven on a balance of probabilities that he sustained a chronic pain condition with functional limitations such that he should be removed from the MIG.

9The parties disagree on the case law that should be followed when determining what kind of chronic pain will exclude an insured person from the MIG. The applicant relies on Rodrigues v. Wawanesa Mutual Insurance Company, 2022 CanLII 117087, which follows the definition as set out in the reconsideration decision of T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (“T.S.”): “ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual’s well being. A simpler definition for chronic or persistent pain is pain that continues when it should not.” I note that the Tribunal in Rodrigues also stated that removal from the MIG due to chronic pain must be accompanied by functional impairment or disability.

10The applicant also relies on A.H. v. TD General Insurance Company, 2020 CanLII 12773 (“A.H.”), specifically the following paragraph:

“Pain is subjective and cannot be measured objectively and, thus, assessing chronic pain can be complex. Unfortunately, the phrase “chronic pain” is not defined in the Schedule. A simple starting point that everyone can understand is that chronic or persistent pain is pain that continues long after it should not. I also note that chronic pain was recently recognized by the World Health Organization (WHO), the global institution responsible for setting health policy standards, as a disease in its own right. As a result, chronic pain is more than a symptom – it is now a recognized as a disorder or disease. I also do not believe that a formal diagnosis of ‘chronic pain syndrome’ is necessary to remove an insured from the MIG and the focus should be on the applicant’s symptoms and their effects rather than concern with a diagnosis. In other words, all that is required is to prove chronic pain based on the entirety of the evidence. This approach is consistent with the Supreme Court’s emphasis in Saadati v. Moorhead that the trier of fact’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not to whether any particular label, such as ‘chronic pain syndrome,’ could be attached to them.”

11The respondent relies on A.P. v. Aviva Canada, 2016 CanLII 60728 (“A.P.”), where there was no specific diagnosis of chronic pain or chronic pain syndrome, and the Tribunal found that the claimant’s injuries fell within the scope of the MIG. It also relies on 17-000640 v. TD Insurance Meloche Monnex, 2018 CanLII 13142 (“17-000640”), which states that a chronic pain diagnosis does not, by itself, take an insured person out of the MIG. They must prove that their chronic pain is not merely sequelae to soft tissue injuries, but are their predominant injuries. Finally, the respondent relies on 16-00438 v. The Personal Insurance Company, 2017 CanLII 59515 (“16-00438”), where the Tribunal held that: “For chronic pain to be more than sequelae from the soft tissues injuries enumerated in s. 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability”. The Tribunal held that a diagnosis of chronic pain without discussion of the level of pain, its effect on the person’s function, and whether the pain is bearable without treatment would not meet the claimant’s burden to show that chronic pain is more than sequelae.

12I agree with the applicant and the Tribunal in A.H. that there does not need to be a specific diagnosis of chronic pain or chronic pain syndrome in order for the applicant to be removed from the MIG. The Tribunal in A.P. did not make any sweeping declaration that a specific diagnosis was a requirement to meet this test, just that the insured person had not proven her claim that she suffered from chronic pain syndrome.

13The applicant takes issue with the respondent’s submission that chronic pain injuries that are sequelae of minor injuries will not exclude an applicant from treatment in the MIG. I agree with the reasoning of the Tribunal in T.S.: “to presume that the term ‘clinically associated sequelae’ already includes more serious impairments such as chronic pain or even psychological conditions, such as depression, would result in an absurd interpretation.” However, it is possible for an insured person to have continuing pain or symptoms that are “clinically associated sequelae” of an injury listed in the MIG, without it fitting into the definition of chronic pain. I agree with the Tribunal in 16-00438 that there must be evidence to show how the pain is not mere sequelae of a minor injury.

14In A.H., a case the applicant relies upon, the Tribunal identified that distinction and defined “chronic pain” as follows:

i. The insured person suffers severe and constant pain – more than simple ongoing or recurrent, intermittent pain.

ii. The insured person’s pain has persisted well beyond the normal healing times for the injuries sustained.

iii. The pain is not a clinically associated sequela to minor injuries.

iv. The insured person’s pain causes functional impairment and disability. It significantly disrupts or disables pre-accident activities of daily living.

15The applicant takes issue with the remainder of the case law relied on by the respondent, stating that the newer Tribunal decisions he cited are outdated and established a different principle. I do not agree that the principles cited in those cases are necessarily outdated. I find that the definition of “chronic pain” in A.H. is comprehensive, and actually includes the principles set out in 17-000640 and 16-00438 relied on by the respondent. Although I am not bound by other Tribunal decisions, I prefer to use it as a framework for this analysis.

16The applicant’s position is that his pain has not resolved within the expected time period for minor injuries (3 to 6 months), and that his injuries adversely affect his well-being. This was due to a decreased range of motion, having to perform modified duties at work, and an avoidance of heavy tasks. The applicant also relies on an OCF-3 from Richard Chu, physiotherapist, who described his pain as constant and “more chronic in nature”, and which was significantly affecting his functional activities.

17The respondent relies on its s. 44 assessors, who all stated that the applicant’s injuries meet the criteria described in the MIG. The respondent submits that the applicant has failed to provide medical evidence to support a finding that he suffers from chronic pain syndrome or an impairment that would justify treatment outside of the MIG.

18The applicant visited Credit Valley Hospital immediately after the accident, and complained of pain to his chest and neck. He followed up with his family physician, Dr. Beshay, on November 4, 2019, due to an inability to move his neck or shoulder for two weeks. He was also experiencing pain in the lower part of his neck and his upper back. Dr. Beshay recommended physiotherapy, exercise, and massage, and prescribed pain medication. The applicant subsequently attended Focus Physio for 8 sessions of therapy between November and December 2019. The applicant visited Dr. Beshay again on December 8, 2019. He complained of upper back pain since the accident, which got worse after lifting his daughter out of the car. On March 17, 2020, the applicant visited Dr. Beshay for a refill of medication. It was noted that he had a history of low back pain since the accident. There are no other records from Dr. Beshay with respect to the accident after that date, although he continued to visit Dr. Beshay for other unrelated issues.

19The applicant’s physiotherapist, Richard Chu, submitted an OCF-3 on August 25, 2020. He noted that the applicant had constant pain in his neck, upper back, mid back, and low back. He stated that the pain was more chronic in nature, and significantly affected his functional activities. No details are provided with respect to the activities that were affected. I find that this document is not particularly persuasive on its own, due to the lack of information provided.

20The applicant underwent three s. 44 physiatry assessments, and all three assessors found that his injuries fit within the definition of the MIG. The applicant’s pain descriptions varied at each assessment. On May 14, 2020, he was assessed by Dr. Ko. He reported constant pain to his neck and lower back. His neck pain was improving on a daily basis, and worsened with prolonged neck flexion and lifting weights. His low back pain worsened after sitting for more than two hours, or when he lifted weights. He demonstrated full range of motion, but had tenderness on palpation to his back. On February 10, 2021, he was assessed by Dr. Williams, and reported that he continued to experience pain in his neck, chest, and lower back. He had an overall improvement of 50% to date. His neck pain was intermittent, and lasted for 15 minutes. His chest pain was also intermittent, lasting for 10 seconds once per week. His low back pain was constant, aggravated by prolonged sitting, lying down, and walking. Dr. Williams’ physical examination was limited due to a lack of effort and participation. Finally, on November 29, 2021, the applicant was assessed by Dr. Gwardjan. He reported gradual improvement, and then over the previous few months his pain started to increase in intensity. His neck pain was intermittent and aggravated by lifting. His low back pain occurred on a daily basis. His range of motion was limited in his lumbar spine.

21The applicant also underwent a psychological assessment with Dr. Moshiri on April 16, 2020, and at that point in time he described no improvement to his neck pain, his lower back pain had improved 70%, and his chest pain had improved 100%. Although Dr. Moshiri conducted a psychological and not a physical assessment, I note that the applicant’s complaints to Dr. Moshiri regarding his physical health were different than what he described to the other assessors. Further, the applicant reported to Luigi Grimaldi during a s. 44 functional abilities evaluation on August 20, 2020, that he had frequent moderate neck pain, and occasional slight low back pain. These complaints were different than what he reported to Dr. Williams and Dr. Gwardjan.

22There are very few details regarding the effect the applicant’s pain has had on his ability to function. He reported to all the assessors that he was independent in his activities of self-care. He was able to return to work just prior to the Covid-19 pandemic, and then returned once again when the store where he worked re-opened. Although he reported to Dr. Williams and Dr. Gwardjan that he was working modified duties and hours, there are no specifics about what duties he was unable to complete, aside from avoiding activities requiring heavier demands such as lifting. According to his income tax returns, the applicant earned more after the accident than before, and without further information, that does not lead me to believe that his hours were reduced. He did not describe any functional difficulties to Dr. Ko or to Dr. Moshiri in 2020. He advised Dr. Williams that had returned to running three months before his assessment, although he had not returned to swimming or bike riding. No elaboration was provided as to why, or whether this was due to his injuries. He reported to Dr. Williams that he was able to care for his children, although he had difficulty lifting them. He described difficulty with the heavier household chores to Dr. Williams and Dr. Gwardjan, but no further details were provided.

23On October 14, 2021, the applicant visited a walk-in clinic due to a fall on the stairs while carrying a chair. The notes indicate that he had pain in his mid back that was radiating to his neck. The only mention of the accident was the fact that he was involved in an accident two years ago. On October 27, 2021, the applicant visited again because of low back pain, and said he felt better but still had some residual pain. On November 15, 2021, he complained of low back pain, but noted that his cervical pain was getting better. Finally, the applicant attended the clinic on December 9, 2021. The note states that he had a motor vehicle accident two years ago, and he reported that the visit on October 14 was because he had fallen due to a spasm in his back which was related to his previous injury. Medications were helpful but he felt pain and stiffness every morning. I note that in the applicant’s reply submissions, he states that the October 2021 fall only temporarily affected his mid back and did not worsen his accident-related low back pain.

24It does appear that near the end of 2021, the applicant was still experiencing some pain as a result of the accident. However, the descriptions of pain varied throughout the records and reports, and there appears to be an unexplained worsening of the applicant’s symptoms between the assessments in 2020 and 2021. The description of low back pain in October 2021 to the walk-in clinic physician was that he had some residual back pain, but it was improving. This is different from what he described to Dr. Gwardjan in November 2021. The applicant disputes Dr. Gwardjan’s findings, and argues that he failed to address the limitations in his range of motion. However, the applicant has failed to explain why his range of motion was normal in May 2020 when he assessed by Dr. Ko, and then worsened during Dr. Gwardjan’s assessment in November 2021. Further, Dr. Williams found that the applicant was self-limiting during range of motion testing. Ultimately, I find it difficult to get an accurate sense of the severity of the applicant’s accident-related pain.

25Even if the applicant’s pain was severe, I cannot determine his level of disability due to his injuries. He has not provided sufficient details regarding how his activities are restricted due to his pain. He has not met his onus in proving that his pain causes functional limitations and significantly disrupts his activities of daily living. I accordingly find that he has not proven that he suffers from a chronic pain condition that would remove him from the MIG.

26As I have found the applicant to remain within the MIG, I find that I am not required to review the treatment plans in dispute to determine if they are reasonable and necessary. With respect to the OCF-6, the applicant argues that it is payable as he does not belong in the MIG. As I have found that he remains in the MIG, I also find that the OCF-6 is not payable.

Repayment

27I find that the applicant is not liable to repay the income replacement benefits he received.

The Law

28S. 52(1)(a) of the Schedule states a person is liable to repay an insurer any benefit that is paid as a result of an error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation or fraud.

29S. 52(2) of the Schedule states that if a person is liable to repay an amount to an insurer under s. 52 of the Schedule, the insurer shall give the person notice of the amount that is required to be repaid.

30S. 52(3) of the Schedule states that if the notice under s. 52(2) 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 stops being liable to repay the amount unless that amount was originally paid to the person as a result of wilful misrepresentation or fraud.

31Wilful misrepresentation has been described by this Tribunal as “any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts” (Unifund Assurance Co. v. MDC, 2020 CanLII 94799). Further, “silence or a failure to report” can constitute wilful misrepresentation.

32The burden of establishing that an insured person is liable for a repayment rests with the insurer.

The Positions of the Parties

33The applicant received an income replacement benefit in the amount of $183.75 per week. On September 4, 2020, the respondent wrote to the applicant to advise that he was no longer entitled to the benefit based on a report from Dr. Ko dated September 3, 2020. The benefit was terminated on September 18, 2020.

34The respondent submits that during the applicant’s assessment with Dr. Gwardjan in November 2021, he reported that he had returned to work in March 2020. The respondent submits that it subsequently received and reviewed the applicant’s income tax records for 2019 and 2020, which showed that he had returned to work and earned significantly more money in the year after the accident than the year before. The respondent seeks reimbursement for the time that the applicant admitted to having returned to work, and to be conservative, it seeks repayment for the 24 weeks between April 3, 2020 and September 18, 2020, in the amount of $4,410.00.

35The applicant’s position is as follows:

i. The respondent received the s. 44 report of Dr. Ko in May or June 2020, and the applicant had reported to Dr. Ko that he went back to work as of March 2020 working 24 hours in total over 15 days, then stopped working due to Covid. Further, in May 2020, Dr. Moshiri’s report stated that the applicant went back to work on March 1, 2020, and worked for 10 days until he stopped due to Covid. He indicated to Dr. Moshiri that he was ready to go back to work. On February 10, 2021, the applicant advised Dr. Williams that he had returned to work and was working 8-10 hours per week. The respondent made no effort to obtain or request additional financial information to recalculate the benefit after receiving these reports.

ii. The applicant is no longer liable to repay the amount claimed pursuant to s. 52(3) of the Schedule, as notice was not provided within 12 months after the payment. The applicant submits that there was never a wilful misrepresentation or fraud as he advised the assessors that he was back at work.

iii. The respondent has failed to give the applicant the notice required pursuant to s. 52(2)(a) of the Schedule, and as such he is not liable to repay the amount claimed.

36The respondent made the following submissions in reply:

i. In the respondent’s letter to the applicant on July 9, 2020, advising him that he was entitled to the benefit, it requested that if the applicant returned to work, he should advise them within 10 business days. The letter also referred to s. 52, stating that a person is liable to repay the insurer if there has been an error on the part of the insurer, the insured person, or any other person. At no time prior to the termination of the benefit did the applicant notify the respondent that he had returned to work.

ii. In the case of wilful misrepresentation or fraud, under s. 52 there is no “limitation period” applicable to a request for repayment. The applicant was obliged to inform the respondent that he had returned to work, and chose not to do so. This was a wilful misrepresentation.

iii. There are discrepancies throughout the records as to whether the applicant was working or not. He told Dr. Ko and Dr. Moshiri that despite a desire to work, he was no longer working due to the pandemic. He told Dr. Williams that he took time off due to the pandemic, and then returned to modified duties, and also worked at a second job arranging flowers. The OCF-18s in 2020 and 2021 indicated that his impairments affected his ability to carry out the tasks of his employment and activities of normal life, and the functional goals included a return to modified work activities and return to pre-accident work activities. While these anomalies alerted the insurer to the possibility of an overpayment, these were hearsay statements that fell short of actionable evidence. Up until the commencement of the application to the Tribunal, the respondent had only a suspicion.

iv. When the applicant submitted its application to the Tribunal, the respondent pursued an expeditious resolution of the overpayment issue. However, at the case conference, there was no documentary evidence on which to quantify the overpayment, and the respondent was required at the case conference to provide an actual amount of repayment demanded in order for the issue to be added. Out of an abundance of caution, the respondent quantified the overpayment based on the earliest documented indication that the applicant had returned to work, per the reports of Dr. Ko, Dr. Moshiri, and Dr. Williams, which was March 2020.

v. Pursuant to the Tribunal’s case conference order, the applicant was required to provide the respondent with his income tax returns and employment file. From the records provided, the applicant returned to work in 2020 with two employers and started his own profitable business.

vi. The respondent wrote a letter to the applicant on April 4, 2023, requesting a complete copy of the applicant’s employment file and paystubs from October 18, 2019 to September 18, 2020. The applicant has not yet provided the requested information.

Was notice provided?

37The respondent added its claim for repayment as an issue in dispute at the case conference on March 30, 2023. It subsequently wrote to the applicant on April 4, 2023, requesting a complete copy of his employment file, and paystubs from October 2019 to September 2020 pursuant to s. 33. The respondent included the wording of s. 52 in this letter.

38The respondent claims that when the application was commenced, it “pursued an expeditious resolution of the overpayment issue”. The respondent has not directed me to any evidence of attempts it made to do so. The application was commenced on June 16, 2022, and based on the evidence before me, it appears the first time this issue was raised was on March 30, 2023.

39I do not find that the letter of July 9, 2020, constituted adequate notice pursuant to s. 52(2). That letter advised the applicant of an obligation to contact the respondent if there was an error, or if he returned to work. It did not advise the applicant that there had been an overpayment, and did not specify an amount to be repaid.

40The benefit was terminated as of September 18, 2020. I find that the respondent provided notice to the applicant at the date of the case conference, March 30, 2023, which is when it provided the quantum of the overpayment to the applicant and advised that it was intending to pursue reimbursement. Even if I am incorrect, and proper notice was not provided until the letter of April 4, 2023, when the respondent cited s. 52, both dates were later than the 12 month period specified in s. 52(3).

41I must now turn to whether the applicant engaged in wilful misrepresentation or fraud. If the answer is no, the applicant is not liable for repayment.

Was there wilful misrepresentation or fraud?

42The respondent approved the income replacement benefit on July 9, 2020. In its letter, it requested that the applicant advise if he returned to work. The evidence suggests that at the time he received this letter, the applicant had not returned to work because of the pandemic. When the applicant did return to work, he should have advised the respondent. However, I must determine whether the failure to advise the respondent was done as a result of wilful misrepresentation of fraud. The onus of proof is on the respondent.

43The applicant advised Dr. Ko on May 14, 2020, and Dr. Moshiri on April 16, 2020, that he had briefly returned to work, but had to stop due to the Covid-19 pandemic. He then advised Mr. Grimaldi on August 30, 2020, that he returned to work in June 2020. He also advised Dr. Williams on February 10, 2021, and Dr. Gwardjan on November 17, 2021, that he had returned to work.

44In the respondent’s letter of September 4, 2020, stopping the benefit as of September 18, 2020, it quotes the applicant’s comments to Dr. Moshiri directly:

“After the accident I stopped working due to the accident-related physical pain. I went back to work on March 1, 2020, and I worked for 10 days following which I stopped working because of the virus. I am ready to go back to work”.

45The respondent clearly knew that the applicant returned to work for a time in March 2020. Although the respondent is not claiming a repayment of benefits paid in March 2020, I find that this letter is illustrative of the information available to the parties at the time. I also find that the applicant knew at this point that the respondent was aware of his return to work and desire to work, and the fact that it was relying on his own comments to the s. 44 assessors.

46Further, Mr. Grimaldi’s report was also attached to this letter, which stated that the applicant had returned to modified work in June 2020.

47There is no evidence before me that the applicant tried to conceal his work activities from the respondent. Although he did not advise the respondent directly, the applicant was upfront to all five s. 44 assessors. The respondent admits that it had a suspicion that the applicant had returned to work, but did not ask the applicant for any information. That suspicion was not due to any covert sleuthing done by the respondent; it was due to the applicant’s direct reporting to the assessors.

48The respondent has not explained what new information caused it to pursue the repayment in March 2023. I can accept that during the assessments with Dr. Ko and Dr. Moshiri, the applicant advised that he was not working due to the pandemic, so there may not have been a reason for the respondent to look into this matter at that point. However, by the time of the other assessments, the respondent knew that the applicant was working. In the absence of any other evidence, I find that the respondent based its claim for repayment in 2023 on the same information it already had available to it by at least September 2020, when it provided Mr. Grimaldi’s report to the applicant. That same information was provided to the respondent through each subsequent assessment. This is accordingly not a situation where an insured person concealed the fact that he was working, and new information was unveiled that caused the respondent to seek reimbursement.

49Based on the totality of the evidence before me, I find that the respondent has not met its onus in proving that the applicant’s failure to report his return to work directly to the respondent constituted wilful misrepresentation or fraud. As the respondent provided notice more than 12 months after the payments were made, I find that it is not entitled to a repayment of benefits.

Interest

50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

ORDER

51The applicant has not demonstrated on a balance of probabilities that he is entitled to treatment beyond the $3,500.00 limit of the Minor Injury Guideline. As such, he is not entitled to the treatment plans or OCF-6 in dispute, and no interest is payable.

52The respondent is not entitled to a repayment of $4,410.00 relating to its payment of income replacement benefits.