Go to EUO But Don’t Answer Questions: That is a No Go – 17-002366 v Coachman by Diana McBey
May 16, 2019
In 17-002366 v. Coachman Insurance Company LAT adjudicator, Deborah Neilson, discussed the significance of a no show at an EUO. At the EUO in this case, the applicant answered some but not all questions, and when presented with surveillance footage which contradicted statements he had made, refused to respond to further questions. Supporting the FSCO appeal decision from State Farm Mutual Automobile Insurance Company and Williams Adjudicator Neilson agreed with the insurer that a refusal to answer questions at an EUO is a failure to submit to an EUO, required under s. 33(2) of the Statutory Accident Benefits Schedule.
Duty to Submit to an EUO
Adjudicator Nielson determined that not all questions asked at an EUO may be relevant or appropriate. However, when an applicant refuses to answer questions fundamental to the adjustment of the claim, this frustrates the purpose of the EUO. Adjudicator Nielson therefore determined that the applicant’s refusal to answer fundamental questions concerning his employment amounted to a failure to submit to an EUO.
Adjudicator Nielson reasoned that an applicant is only required to attend one EUO per accident leaving the insurer with no recourse to demand re-attendance if the applicant does not answer the questions relevant to his entitlement to benefits. However, s 33(6) states that if they do not attend, an Insurer is not liable for paying a benefit for the non-compliance period. Since failure to answer fundamentally relevant questions equates to failure to submit to an EUO, the Insurer can refuse payment of IRBs under s 33(6) if the applicant does not answer such questions.
The applicant made an unsuccessful argument that a refusal to answer questions at an EUO is justified where incomplete disclosure leads to unfair questioning by reason of ambush. Adjudicator Nielson found that since the applicant presented no support for such a stance from the Schedule, the timing of the insurer’s disclosure of surveillance leading to perceived ambush was not reason to refuse answering questions.
Implications of Failing to Submit to an EUO
Since the applicant has the obligation to submit to an EUO, the duty to notify consent to continuance of an EUO also belongs with the applicant. Without this, the insurer is entitled to withhold IRBs on the basis of failure to submit to an EUO. However, Adjudicator Nielson determined that once this has happened, the insurer has a duty to schedule the EUO within a reasonable time or the applicant may have a reasonable excuse for not submitting to the EUO.
Failure to provide information and submit to an EUO without reasonable excuse, can, as in this case, allow the insurer to determine the applicant is no longer entitled to receive an IRB under s. 37(4). Adjudicator Nielson determined that if the Insurer does so, the insured must be informed in writing so they can comply with, provide an excuse for, or dispute the determination and reasoning.
Adjudicator Nielson determined that once an applicant submits to an EUO s. 33(8) provides that the Insurer is required to resume payment including benefits withheld during the period of non-compliance if the applicant has a reasonable explanation for the non-compliance.] If an applicant does not, their benefits could be forfeited for the period starting 10 days after receipt of the information request notice until the information is provided.
- Refusal to answer questions fundamental to a claim adjustment amounts to a failure to submit to an EUO.
- Once an applicant submits to an EUO the Insurer is required to resume payment of the benefit including those withheld during the period of non-compliance if the applicant has a reasonable explanation for the non-compliance.
- If an applicant does not have a reasonable explanation for non-compliance, their benefits could be forfeited for the non-compliant period.