Print

 

 Volume. 8 Issue. 15 – April 24, 2024


This week two instances wherein wilful misrepresentation on the part of the injured party proved costly. In ‘Silence Is Not Golden’, the Applicant was not immediately forthcoming with respect to having become entitled retroactively to LTD.

In the second case ‘Skip the IRB’, the Applicant failed to advise of having secured part time employment with SkipTheDishes, leading to a reduction in IRB paid during the period in question. The Applicant asked the Tribunal to reconsider the basis of the calculation for repayment and his inability to repay.



SABS Summer Session!

Secure your seat for inHEALTH’s 2024 Summer Virtual Training session. inHEALTH continues to celebrate 25 years! Join the celebration and receive 25% off SABS Expedited until April 30, 2024!

  • SABS Expedited: June 17th – 21st, 2024

*Eligible Participants receive 9 Substantive – CPD hours upon course completion

Course details & register here +



LTD Payments Not Disclosed

Silence Is Not Golden – Injured in a February 2019 MVA, the Applicant Harkness received IRB from April 2019 through to September 2020, at which time they were suspended due to a failure to provide particulars on LTD benefits she was receiving. In 21-009644 v Aviva, the Tribunal noted that wilful misrepresentation had been defined by the 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… “silence or a failure to report” can constitute wilful misrepresentation.” In a January 2020 letter, the LTD carrier advised Harkness that she would begin receiving a gross monthly LTD payment of $3,621.00 retroactive to August 27, 2019. In a May 11, 2021 letter, counsel for Harkness advised Aviva that she was receiving LTD.

The Tribunal found that “On the face of it, the facts of this case establish wilful misrepresentation. The respondent received LTD payments for about a year and three months before advising the applicant. The respondent has made no effort to explain why it took so long to advise the applicant of her LTD benefits. In my view, this “silence or a failure to report” constitutes wilful misrepresentation.” Given the amounts received through LTD exceeded the IRB payments, during the period in question IRB quantum would be nil.”

Harkness argued that if indeed this was found to be wilful misrepresentation, the amount owing ought to be between February 6, 2020 (date of LTD confirming approval) and September 26, 2020. However the Tribunal disagreed, noting that “Section 52 (1)(a) permits the repayment of “any benefit” paid as a result of an error or wilful misrepresentation. Thus, the IRB paid between August 2019 and February 2020 is also subject to repayment as it was paid in error.” Accordingly, the entirety of the $19,068.20 sought was payable. There was however no interest payable, as Aviva did not claim same in their demand letter.




Working While Receiving IRB

Skip the IRB – In the original decision, the Tribunal found that the Respondent Thomas had misrepresented his income status while receiving IRB. He failed to disclose having secured part time work as a delivery driver with Uber and SkipTheDishes, same having come to light during the course of an April 2021 insurer examination. As a result, the Tribunal found that Security was entitled to the repayment sought of $10,847.17. While there had been an earlier agreement whereby Security reduced the demand to $6,000, to be paid in installments, Thomas made only a single payment, therefore Security sought the entire confirmed overpayment amount.

In 22-000176 v Security National, Thomas sought reconsideration, arguing that the Tribunal had not distinguished between his gross and net income from the delivery activities, and further failed to consider his impecuniosity, the inability to repay. As for the first suggestion, the Tribunal found that the accountant for Security had provided a persuasive report, that Thomas had failed to counter. In addition, he had failed to provide a number of documents in support of his claim regarding IRB. Ultimately, the Tribunal found that Thomas (self-represented) was making the same arguments that he had during the initial hearing.

As for his impecuniosity, again the Tribunal found that this argument was considered and rejected during the hearing. Reference was made to Myers v. Metropolitan Toronto Chief of Police, wherein it was noted that the courts and the Tribunal “should avoid “a situation in which litigants without means can ignore the rules of the court with impunity, and the distastefulness of creating a rule incapable of consistent application”. The Tribunal also rejected an alternative proposal by Thomas, that the $6,000 “settlement” amount be considered as the amount of any overpayment. Accordingly, the request for reconsideration was dismissed.



Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!

 

Archive of LAT Updates

May 1, 2024: Tribunal Varies Three Decisions on Reconsideration

Reconsideration, Treatment Plans

April 29, 2024: Credibility of Assessment Favored Over Psych Validity Testing

MIG

April 24, 2024: Wilful Misrepresentation Abounds on IRB Repayments

IRB

April 22, 2024: Records Alone Do Not Warrant MIG Removal on Pre-Existing

MIG

April 15, 2024: Demands of Child-birth Pre-Existing Condition?

MIG

April 10, 2024: Court Upholds Tribunal Decision That a MIG Removal is a Complete MIG Removal

Divisional Court, MIG

April 8, 2024: Psychiatric Diagnosis Prevails over Psychological Opinion

MIG

April 3, 2024: Court Sends Matter Back to Tribunal Concerning “Accident”

Definition Accident, Divisional Court

April 1, 2024: Ortho Opinion Prevails on Origins of a Fracture

MIG

March 27, 2024: Supreme Court Takes Issue with Tribunal, Divisional Court & Court of Appeal

Limitation Period, Reconsideration, Supreme Court

March 25, 2024: Expert’s Conclusory Statement Insufficient on Pre-existing Condition

MIG

March 20, 2024: Non-Compliance by Both Parties Impacts IRB and Medical Claims

IRB

March 18, 2024: No Weight Afforded to Handwritten Illegible CNR’s

MIG

March 13, 2024: Denials Deficient and Pain Relief Validates Treatment Plans

Treatment Plans

March 11, 2024: “Radicular Irritation” & MRI Findings Not MVA Related

MIG

March 6, 2024: Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

Evidence, IE, Reconsideration

March 4, 2024: Concussion and Chronic Pain Diagnoses Require Expertise

MIG

February 28, 2024: Prior Health Concerns Complicate Claim for CAT

CAT

February 26, 2024: Unchallenged Virtual Chronic Pain Assessment Accepted

MIG

February 21, 2024: Consent by Parties for Adjournment Not Determinative

Adjournment, Procedure

February 14, 2024: Tribunal Does Not Accept the CAT Findings of Either Party

CAT

February 12, 2024: MIG Escape on Concussion Diagnosis Despite Resolution of Symptoms

MIG

February 7, 2024: Financial Hardship Not A Defense for Repayment Responsibility

IRB

February 5, 2024: CT Scan of Wrist Fracture Contradicts Medical Opinion

MIG

January 29, 2024: Concussion Despite No Head Injury?

MIG

January 24, 2024: One Assessment Process Produces Two Discrete Reports

CAT, Productions

January 22, 2024: Defective Notices Do Not Trigger Limitation

MIG

January 17, 2024: Election Not Required, LAT Act Invoked & Limits Exhausted?

Award, Limitation Period

January 15, 2024: Chronic Pain Diagnosis Contradicted by Self-Reports

MIG

January 10, 2024: NEB Reinstated After Six Years Generates Award

Award, NEB

January 8, 2024: Undisputed Psychological Diagnosis Prevails

MIG

January 3, 2024: Significant & Competing Price of Non-Compliance for Both Parties

Non-Compliance

December 20, 2023 (Throwback Edition): Statutory Relief Within Tribunal’s Jurisdiction

Jurisdiction

December 18, 2023: ‘Incident’ of Viewing Video Not Use and Operation

MIG

December 13, 2023 (Throwback Edition): Employed Applicant Remains Entitled to Post 104 IRB

IRB

December 11, 2023: Chronic Pain Diagnosis In Absence of Physical Exam?

MIG

December 6, 2023: Four Marked Impairments for 2010 MVA

CAT

December 4, 2023: No Adverse Inference Drawn Despite Lack of pre MVA CNRs

MIG

November 29, 2023 (THROWBACK EDITION): 18 Month Delayed Notice Reasonable, However 7 Month Delay is Not

Limitation Period

November 27, 2023: Confirmed High Bar to Escape MIG on Pre-Existing

MIG

November 22, 2023: Multiple IEs Excluded From Evidence

IE, Evidence

November 20, 2023: Radiculopathy Complaint Requires a Diagnosis

MIG

November 15, 2023: Court Applies Tomec & CAT Decision Varied

CAT, Limitation Period

November 13, 2023: Insurer Expert Conclusion Inconsistent with Findings

MIG

November 8, 2023: Maximum Award in Excess of $60K on CAT Case

CAT

November 6, 2023: Medical Evidence Overrides Legal Referrals

MIG

November 1, 2023: Eighteen Month Delayed Notice Reasonable However Seven Month Delay is Not

Limitation Period

October 30, 2023: Which MVA Exacerbated Injuries?

MIG

October 25, 2023: Application Seeking CAT Determination an Abuse of Process

CAT

October 23, 2023: Functional Disability Despite 50 Hour Work Week

MIG

October 18, 2023: Statutory Relief Renders Equitable Remedy Moot

Div Court

October 16, 2023: Injuries Not Static - MIG Determined Again

MIG

October 11, 2023: CERB is Income However Not “Gross Employment Income”

IRB

October 4, 2023: Employed Applicant Remains Entitled to Post 104 IRB

IRB

October 2, 2023: ‘IE’ Does Not Establish Causation

MIG

Contact Sales

416.364.6688

Contact Support

Contact Us

InHealth

11 Allstate Parkway Suite 203
Markham, Ontario
L3R 9T8

Follow Us On