Articles Posted in Fibromyalgia

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Here’s the scenario:

You’ve been working diligently for the same employer, at the same job for years. You’ve given it your all. Countless hours of pain staking work. The job pays well. You have some great colleagues at work. And you have a benefits plan that you believe is fantastic. Part of that so called benefits package is disability insurance; which; in theory; you’ve been told will cover your wages if for whatever reason you can’t return to work on account of injury, illness or disability. You know little about the disability plan because you’ve never had to use it before and you’ve never missed out on work for a prolonged period of time. Your past work attendance has been excellent. Your performance reviews are always top notch.

And then; things happen to change. Some really bad luck. A fall here that never quite heals. You throw out your back on account of a minor slip and fall. Or perhaps chronic pain starts to take over your body such that you can no longer focus, get out of bed or function like you used to. Or maybe you just aren’t the same person any more on account of psychological illness like anxiety, depression, sadness or a combination thereof. Perhaps you’ve been diagnosed with chronic pain or fibromyalgia. Whatever the reason, disability happens. Unfortunately, it’s a part of life for many. And when disability happens, you would hope that your long term disability insurer and employer are both there to support you when you need the help the most. After all, you’re the all star employee who has given it his/her all over the past 10+ years at work.

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Our law firm handles a wide variety of Long Term Disability (LTD) Claims against pretty much every deep pocketed insurer you can think of: Manulife, SunLife, Great West Life, Desjardins, SSQ, RBC Insurance, Empire Life, Canada Life, Industrial Alliance, Equitable Life, Co-Operators, Standard Life (Now Manulife). If you can name them, we have probably sued them.

Although every LTD claim is different, and every insurer handles claims in their own way, our lawyers see many similarities for these denied claims. Because we have years of experience helping people get the benefits they deserve, we are able to share some of our wisdom with you, our readers of the Toronto Injury Lawyer Blog.

For today’s instalment, we would like you share with some of the top reasons why Long Term Disability Insurers deny claims.

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Many people have benefits through work. Most understand those benefits to cover medical expenses such as massage, physiotherapy, medication, and dental expenses. Few think of those benefits as covering a portion of your income while you’re disabled and unable to work. This concept is called “disability benefits” or “disability insurance“.

These disability benefits are VERY important. Having them is excellent and great idea. Even if they aren’t offered through your employer’s benefit program; you can still purchase such benefits on your own from an insurer, or from an insurance company. These benefits are commonly referred to as Short Term Disability Benefits, and Long Term Disability Benefits. They typically run up until the age of 65 in the event of disability. Large insurers which offer LTD insurance are such companies as Manulife, Great West Life, Canada Life, Sun Life, Industrial Alliance, SSQ, Desjardins, RBC Insurance, Co-Operators, Equitable Life amongst others.

But it’s not enough to have access to this insurance. It’s important to understand HOW IT WORKS, and how to apply for it in the event of disability. Every policy is unique. Every policy will contain it’s own definitions of disability, their own exclusions, along with their own benefit amounts. Some policies are better than others. A BAD LTD policy is ALWAYS better than NO POLICY whatsoever. Usually, you get what you pay for. And, just because your employer offers LTD insurance through work, doesn’t mean that it’s a good LTD policy. Check it out for yourself how it works or talk you a broker or a lawyer about it.

As with any insurance, just because you’re hurt, doesn’t mean that benefits will automatically begin to flow. You have to jump through some hoops in order to get those benefits to begin. At the end of the day, you have something the insurance company has; and which the insurance company does NOT want to give up; it’s their money!

The first rule of insurance is that if you don’t claim for it; you won’t get it. The same applies to your LTD policy. If you don’t make a claim on it, then you won’t be able to collect benefits on the policy. But claiming these benefits isn’t as simple as putting in a phone call, or filling out a form online. There are a few forms which you, and your doctor  and employer will need to complete. The whole process can take some time.

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There are two schools of thought when it comes to fibromyalgia.

Some doctors believe it exists, and it’s a very real illness/disabling condition.

Other doctors don’t believe it exists, and that it’s all in your head.

Insurance companies and their lawyers, tend to side with the latter. Personal injury lawyers and their clients tend to side with the former.

In any event, fibromyalgia is one of the most difficult disabling conditions for a lawyer to prove. Next to a minor brain injury which doesn’t show up on any type of x-ray, scan or MRI, it’s right up there.  It’s also one of the most difficult disabilities for somebody to explain to another person. You look fine. You don’t have any visible breaks, abrasions or wounds. So, what could possibly be wrong?

Some of the most common things our lawyers hear things from clients are complaints such as:

  • It’s hurts all over
  • I have really bad headaches
  • I’m tired all the time
  • I can’t think properly, I can’t concentrate, I can’t read, I can’t remember things, My mind is like mush
  • I’m sad
  • I cry for no reason or really easily
  • I have problems sleeping at night
  • I have little motivation to do things
  • The pills I take don’t work and make me drowsy
  • I keep to myself and don’t socialize as much anymore
  • Nobody understands what I’m going through

YOU’RE NOT ALONE!!!!  These complaints are very common.

Our law firm has helped countless fibromyalgia sufferers over the years get the compensation and medical support they deserve. We understand that communicating things which can’t be seen on any x-ray scan or MRI are difficult to explain to a lay person, friends or a family member. What’s most important is having the right legal team set up your claim properly from day #1 so that your case is set up to win.

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Sometimes, the Toronto Injury Lawyer Blog examines recent cases that we think our readership will enjoy. We do our best not to make the legal analysis too technical, because that just turns in to a snooze fest. We want to keep things light, upbeat and easy/enjoyable to read. The law can be very dry and we don’t want our blog to become a bore.

Reading the Ontario Reports this week, we came across an interesting Long Term Disability Benefits decision involving a disability claimant, Ms. Garneau; and her LTD insurer, Industrial Alliance.

The decision was taken to Ontario’s Highest Court, (just shy of the Supreme Court of Canada); to the Ontario Court of Appeal on Queen St. in Toronto.

The decision appeal decision of Garneau v. Industrial Alliance Insurance and Financial Servics Inc. 2015, ONCA 234 can be read here. The motion for a reduction in set offs at the Superior Court level can be read here. The initial decision which was being appealed can be read here.

What makes this case so interesting for our law firm? Read on and we will share with you.

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One of the most commonly asked questions of clients at my law firm is “how much is my case worth?

This is never an easy question to answer.  When assessing the value of a claim, particularly an LTD claim, there are a variety of factors which need to be examined such as:

  • The age of the LTD Claimant
  • The duration which benefits are payable under the policy (age 65 or earlier?)
  • Were any back payments/arrears paid out by the LTD Insurer or not?
  • The value of the monthly LTD benefit
  • Are there any set offs which the LTD insurer is entitled to under the policy such as CPP, WSIB or otherwise
  • Is there an all source maximum deduction at play
  • What are the nature of the injuries causing the disability and are those injuries likely to heal
  • What the claimant’s doctors have to say about a potential return to work
  • What the insurer doctors have to say about the injuries and the potential return to work
  • Has the insurer conducted any surveillance (real time, online, cyber or otherwise) and what does that surveillance show
  • What sort of education, training and work experience does the claimant have
  • Can the claimant read and write in English or French
  • What is the employability potential of the claimant following the LTD claim
  • Has there been any bad faith handling of the LTD file on the part of the insurer. If so, what is the nature of that bad faith claims handling and how has it impacted the claimant’s entitlement to LTD benefits?

The value of the LTD claim depends in large part on how the above noted questions are answered, amongst other factors which may be unique to one’s case.

Unlike other injury or accident cases, LTD claims are largely assessed based on mathematical equations. Take the value of the LTD benefit, less any off sets, by the number of months owing in arrears and future benefits owing by the insurer; et voila; you will have the maximum exposure owing by an insurer.

In a car accident claim, the award for pain and suffering, is somewhat subjectively based on historical precedent of cases built over the years. There are different heads of damages for car accident claims such as pain and suffering, past/future income loss, housekeeping claim, attendant care claim, claim for out of pocket expenses, claim for past and future care costs, claim for a modified home or vehicle, family law act claim for loss of guidance care and companionship etc. On the tort end of a car accident claim, there are a variety of heads of damages upon which to base a claim.

LTD claims are different because many of these heads of damages simply don’t exist. LTD claims are contract claims. No contract of insurance; NO CLAIM. Because they are contractual claims, they are based primarily on what’s contained inside of the policy and its wording. These are NOT claims for pain and suffering. These are claims for past and future benefits, based on an amount as defined and calculated pursuant to the policy. Therefore, establishing damages is not based on legal precedent. It’s based on what the policy says, along with the factors set out above.

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A Long Term Disability policy of insurance (LTD Policy), is a policy designed to cover the insured for a monthly benefit in the event that person becomes disabled.

These policies are often offered by employers, to employees as a part of their benefits package. It’s a common perk of employment. Like saying that you work at Google, and they offer a generous benefits package. That package includes LTD Benefits. The nice thing about this is that the employee has a benefits package. The bad thing about it is that the employee doesn’t have much say about what goes in to that benefits package, how much those benefits are worth, and the benefits will likely cease when the employee ends his/her employment relationship with the employer. No longer an employee of Google? Then no more LTD benefits are available to you.

Other times, LTD Benefits are purchased privately through an insurance broker. In this instance, the policy holder (that’s you) gets to pick the right amount of coverage which best suits their lifestyle and financial situation. The LTD benefits are NOT tied down to a specific employer. They follow the insured person from job to job. These benefits are great for contractors, self-employed persons, people who don’t have benefits offered through their employer, or even people who have benefits offered through their employer, but just want additional coverage because the coverage offered through their employer isn’t necessarily the best.

Some of the large companies who offer LTD benefits (both group and individual policies) are Great West Life, Canada Life, Sun Life, Standard Life, Manulife, RBC Insurance, Industrial Alliance, Co-Operators Insurance, Desjardins, SSQ and Equitable Life just to name a few.

As you can see, there are quite a few LTD Insurers out there to chose from. It’s important to note that each policy is different. What’s most important to the insured, is how the policy works to get you paid in the event of disability.

The term “disability” is a VERY broad term. Don’t believe me? Here are a few insurance examples from car insurance policies, and LTD policies which define what it means to be “disabled” to receive benefits under their policies.

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The term Fibromyalgia is becoming dated, although doctors, insurance companies and disability claimants still use it.

The preferred term according to the Arthritis Society of Canada is “Chronic Widespread Pain“.

Many of our clients deal with Fibromylagia/Chronic Widespread Pain. We often see it associated with many other symptoms including but not limited to depression, anxiety, fatigue, impaired memory, impaired concentration, shortness of breath, and irregular sleep patterns/habits.

Some doctors believe in Fibromyalgia. Other simply don’t.

Firbromyalgia and Chronic Widepread Pain have been recognized and National Guidelines have been endorsed by the Canadian Pain Society and the Canadian Rheumatology Association.

But for many large, deep pocketed insurance companies, those endorsements aren’t enough to prove an injury or a disability under a Long Term Disability Policy with an insurer like Manulife, Great West Life, SunLife, Desjardins, SSQ, RBC Insurance or Industrial Alliance just to name a few of the big ones.
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