The decision serves as a useful reminder of the broad rights afforded to insurers in conducting the fact-finding exercise of an Examination Under Oath.
The applicant had been involved in an accident on September 6, 2013. The insurer terminated Income Replacement Benefits on or about January 31, 2014 based on IME reports. On April 17, 2015 the insurer requested an Examination Under Oath due to confusion surrounding when items were submitted to the Insurer. An arbitration was set to commence on January 25, 2016.
The applicant’s counsel took the position that the insurer was "statute-barred" from completing an Examination Under Oath. According to this theory the insurer was required to request the Examination Under Oath within the"10 business days" referred to in Section 33 and Section 36(4).
This reading of the law was rejected.
By way of background, Section 33(1) requires an insured to provide an insurer with requested information to determine eligibility for accident benefits within "10 business days" of a request. Section 36(4) provides that an insurer has "10 business days" after receipt of an application to request information under Section 33.
While noting that the 10 day time limit in section 36(4) has been the subject of debate, the arbitrator noted that pursuant to previous decisions, the time limit applied to the "limited circumstances" at the beginning of the adjustment of a specified benefit, and "does not preclude an insurer from paying the claim and then later requesting an Examination Under Oath."
...section 36(4) "does not restrict or diminish the insurer’s general and ongoing option of requiring an insured to attend an Examination Under Oath... |
Arbitrator Mills explained that section 36(4) "does not restrict or diminish the insurer’s general and ongoing option of requiring an insured to attend an Examination Under Oath pursuant to Section 33." A request for an Examination under Oath "is pertinent to the insured’s continuing entitlement to benefits and not just the initial entitlement to benefits."
This reaffirmation of an insurer’s right to conduct an Examination Under Oath will be welcomed by those who meet similar obstacles in their attempts to conduct this fact-finding exercise.
If carried to its logical conclusion, the applicant’s position would have resulted in an absurd outcome from an insurer’s perspective. Acceptance of the applicant’s view would have implied a time limit of 10 days after receipt of an application for benefits to request an Examination Under Oath, a deadline that is arguably impractical and unfair to insurers.
Read the full motion decision Choeun ats Allstate.
