How is information exchanged in accident benefit claims?

Acquire knowledge of examinations under oath and independent examinations

In a claim for accident benefits, both the applicant and the insurer bear rights and obligations. These rights and duties have been balanced in order to make the process fair to each side.

Fairness from the applicant’s perspective means getting benefits if they are entitled to them. Fairness from the insurer’s perspective means preventing the applicant from getting benefits if they are not entitled to them.

Before examining the parties’ respective rights and obligations, let us first define some key terms. During an examination under oath (or EUO), the insurer’s legal representative asks the applicant questions under oath or affirmation. An independent medical examination (or IME) is conducted by one or more professionals and can involve a review of the applicant’s medical documents and/or mental or physical assessment of the applicant.

The applicant has a right to

• apply for benefits
• be represented at an EUO at his/her own expense (the legal representative can help to monitor the questioning to ensure it is within the proper scope and object when appropriate)
• refuse to answer questions in the EUO that are outside the proper scope

The applicant has a duty to

• act in good faith from the beginning of a claim to its resolution
• notify the insurer of his/her intention to apply for benefits within seven days of the accident or as soon as practicable thereafter
• complete, sign and submit the application for benefits within 30 days of receipt of the application package
• attend an EUO requested by the insurer, provided that the applicant is physically and mentally able; attendance mandatory for first EUO but not for subsequent ones unless the insurer is seeking a subsequent EUO because new information not previously available has come to light
• attend an IME requested by the insurer
• mitigate – meaning that the applicant must make reasonable efforts to return to the employment or self-employment in which he/she was engaged prior to the accident or obtain employment or self-employment for which he/she is reasonably suited by education, training or experience

The insurer has a right to

• ask the applicant for
  • any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit,
  • a statutory declaration about the circumstances of the accident,
  • address, and/or
  • proof of identity
• ask the applicant to attend an EUO or IME, except that the latter is not used in relation to minor injuries and funeral and death benefits
• deny or terminate benefits if it has learnt that the applicant has misrepresented material facts in his/her application for accident benefits
• notify the applicant that it intends to stop IRB, NEB or CGB payments if the applicant has not satisfied his/her duty to mitigate

The insurer has a duty to

• act in good faith from the beginning of a claim to its resolution
• in response to a claim, provide the applicant with the requisite application forms and written explanation of the benefits available
• if seeking an EUO, to give the applicant reasonable notice of the EUO and to schedule it at a time and place that are convenient for the applicant
• if conducting an EUO, to restrict questioning to the proper scope (the questions must be relevant to an applicant’s entitlement to benefits)
• if seeking an IME, unless otherwise mutually agreed, to give the applicant at least five days’ notice including
  • the reason(s) why an IME is required,
  • the name(s) of the professional(s) conducting it, and
  • the date, time and place of the appointment
• cover the expense of an IME

Sections 33(6) and 34 of the SABS provide that the applicant’s failure to comply with an insurer’s request for information or EUO within the timelines will disentitle him/her to the benefits during the period of delay unless he/she has a “reasonable explanation” (for instance, if he/she could not attend an EUO because he/she was hospitalized). Likewise, most insurance policies are drafted to permit the insurer to request an IME and to pursue the same legal remedy on noncompliance.

What is an examination under oath like?

Here we review the general details, purpose and impact and offer a guide

Discovery refers to legal procedures by which it is intended that a party to a civil proceeding may obtain information about the case from any adverse party. An examination under oath (or EUO) is a form of discovery.

Rationale: The reason for discovery is to prevent trial by ambush. It is believed that early, as opposed to late, disclosure is more conducive to a fair outcome in a legal case. In the personal injury context, an EUO is useful to the insurer to put a face to the claim, to commit the applicant to a version of events under oath or affirmation and to assess the applicant’s credibility.

Purpose: It is important to understand both what is and what isn’t the purpose of the EUO. Its function is not an opportunity for the applicant to prove the validity of his/her legal claim to the insurer. Its function can be broken down into four components: to obtain admissions that help the insurer’s case; to obtain admissions that will undermine the applicant’s case; to discover the evidence upon which the applicant relies to establish their case; and to narrow the issues to be determined at trial.

Importance: The applicant’s performance is extremely important. His/her answers may be read in at trial and, as such, carry the same weight as oral testimony at trial.

Effect: It has been said that clients rarely win their case at but can certainly lose or damage their case at the EUO. A strong EUO increases the probability of a favorable resolution (and vice versa).

Location: It occurs at an office not in court.

Questions: The specific topics that may be canvassed depends on the circumstances of each case and the insurer’s discretion. However, s. 33(4)3 of SABS provides that the insurer must in its EUO notice give a “reason” for holding it. In Aviva v. McKeown (2017 ONCA 563), the Ontario Court of Appeal clarified that the SABS does not require the insurer to include in its notice a “justification” for its decision to request an EUO. A general statement of the purpose of the EUO that gives the applicant notice of the general types of questions that will be asked is sufficient.

Hypothetical: After he was injured in a MVA, Jonathan claimed an IRB. He wrote in his OCF-13 that he had earned no employment income after the accident. The insurer paid him $6,028. Later, the insurer believed he misrepresented about not working. The insurer sought to recover the $6,028 pursuant to s. 52 of SABS. The insurer asked him to attend an EUO. At the EUO, the insurer played surveillance footage which showed him working. He answered that he worked occasionally for cash payments but denied being an employee. The insurer asked him to provide employment-related documents. He never provided any. He was absent at the LAT hearing. The insurer introduced the evidence of misrepresentation and he was ordered to repay $6,028 plus interest.

Prep: The applicant should meet with their lawyer for the purpose of preparing for an EUO. Ideally this should occur two times – a month and a day or so before the EUO. The lawyer can explain the process, answer questions, highlight important areas and practice how the questioning works. It is also a good idea for the applicant to review key documents before the EUO.

Tips:

• You have to give verbal answers
• Tell the truth
• Speak clearly
• Be polite and courteous
• Listen to the whole question. Be sure you have heard and understood the question
• Answer the question asked and nothing more
• Provide short and direct answers, but be prepared to expand where appropriate
• Don’t speculate or guess. If you don’t understand the question, say so
• Don’t try to guess the strategy of the insurer’s lawyer
• Don’t argue with the insurer’s lawyer
• Don’t fall into the trap of believing that the insurer’s lawyer is friendly and reasonable
• The insurer’s lawyer is not your friend. They have a job to do and that is to diminish the value of your claim
• Follow the direction of your counsel. For instance, if your counsel objects to a question, don’t answer it
• If you realize you have made a mistake – if a previous answer is incorrect, incomplete or misleading – bring the matter to the attention of your lawyer at the earliest opportunity