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Articles Posted in Long Term Disability Claim (LTD)

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This might seem like a very niche topic for the Toronto Injury Lawyer Blog as it relates specifically to Ontario teachers seeking to claim, or who have been denied long term disability benefits by The Ontario Teachers Insurance Plan (OTIP)

The reality is that there are a lot of teachers out there. Teachers have access to long term disability benefits and tend to read blog posts like this. Teaching is a difficult profession where bad days get noticed very quickly by the students and aren’t tolerated. Going in to teach a class day in day out in pain when you aren’t there 100% mentally isn’t good for anyone.

OTIP long term disability polices are some of the most complicated long term disability policies out there. It’s not because OTIP is trying to be difficult towards its membership, or has intentionally made the policies complicated to confuse teachers and to trick them out of getting benefits. It’s just that there are a lot of moving parts for teachers, and a lot of money at stake.

For starters, teachers on average earn a very good and stable income. They generally receive regular raises, and they have access to rehabilitation benefits to help them get better. Teachers are unionized employees as well which adds another layer of potential confusion (like why isn’t my union helping me pursue the long term disability claim?).

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The first long term disability case I had experience with came well before I was a personal injury/disability lawyer.

It happened before I was in law school. It happened to my mom.

She had just gone through multiple surgeries and had not recovered properly, or at all from them. She had been approved for Long Term Disability just before the surgeries took place. She was around 62 years old. After the surgeries, she remained on disability benefits. But shortly there after the long term disability insurer asked that she attend a few “independent” medical assessments with the insurance company’s doctors. She obliged.

Following those assessments, my mom was cut off her long term disability benefits. She was 63 years old, and her benefits were set to expire at the age of 65. She remained at home, in significant pain, and unable to manage her day to day activities of daily living, let along return to any form on employment.

We soon found out that these “independent” doctors who she saw were not really independent. These doctors did minimal to no work through the public OHIP system. Instead, most of their work was generated by referrals from auto insurers, long term disability insurers and WSIB. These doctors did not have a roster of patients who they routinely saw to cure their ailments. Instead, they had institutional clients like insurers, or assessment centres, who referred them people to see on a one shot only basis. After the assessment, they had an army of clerks who would generate reports. The person would arrive at the office for their one and only time to see the doctor. The doctor would check them over, and then someone would generate the report. That report, more often than not went in the favour of the insurer who had referred to doctor the patient in the first place. The doctor would not bite the hand that feeds them so to say.

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Long Term Disability Law can be rather complicated.

It’s complicated because Long Term Disability is based in contract, and every contract is different.

For many people, understanding the words and concepts contained in these long term disability contracts is hard to grasp, and confusing. I can’t say that I blame them.

Take a dog bite case for example. If a dog attacks you, and causes injury to you, then the owner of the dog ought to be held responsible for your injuries and losses.

Long Term Disability cases don’t work that way. Simply because you are disabled, or unable to return to work, does not necessarily mean that you are entitled to long term disability benefits.

And, even if you are eligible for long term disability benefits, the quantum of that benefit, along with the payment duration will be in question as well.

There are a lot of fluctuating variables when assessing and quantifying a long term disability case. We call these moving targets. Those targets don’t move as often, or as frequently, with a straight tort claim, like a dog bite case, as they do with a long term disability claim.

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The purpose of this instalment of the Toronto Injury Lawyer Blog is not about settling a personal injury case fast.

Rather, it’s about what money can be claimed, and recovered relatively quickly, after an innocent accident victim cannot return to work and earn an income after a serious accident.

Getting paid benefits quickly to supplement one’s lost income, because one cannot work after a serious accident is a very common concern for clients. Legitimately so. A Plaintiff goes from earning a gainful income one day; to being disabled and unable to do so the next.  The bill collectors don’t care that you’ve been involved in a serious accident. All that they care about is that their bills get paid.

It’s our hope that this instalment of the Toronto Injury Lawyer Blog gives you some insight on sources to claim benefits in order to make ends meet.

Before we examine those sources, here are a few practical tips to claiming benefits:

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This is an example of how governments with the best intentions can still screw things up.

It’s quite noble for the federal government to want to help people with disabilities make ends meet. Get people with disabilities more money in their pockets so that they can pay their bills, live independently, and with dignity.

So, the Federal Government unanimously passed Bill C-22 “An Act to reduce poverty and to support the financial security of persons with disabilities by establishing the Canada disability benefit and making a consequential amendment to the Income Tax Act”. Yes, that is the full legal name of the Bill because legislators and lawyers tend to get oh so creative and descriptive when naming a new Bill!

The Bill does not go into specifics about how much people would receive. Nor does it go into specifics about how you would qualify for the benefit.

But it does detail that if you qualify for assistance, you would receive money in the form of a disability benefit.

People should know that receiving money, from any source has consequences. There are never “no strings attached”; especially when receiving money from the Government.

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More often than would think, insurance companies seek to add terms to a Full and Final Release which they would not otherwise be able to get in Court.

A Full and Final Release is a legal document which gets signed when a case gets settled outside of Court.

This is standard. Anyone who settles their case outside of Court in a personal injury or long term disability action will be asked by a Defendant to sign such a Release.

Generally, the Release will contain provisions detailing the amount of the settlement, terms that the settlement is final and binding on both parties, that the Defendant is prepared to pay the settlement amount, but does not admit liability, that the Plaintiff cannot sue again over this specific cause of action and that should s/he do so, that the Release will be relied upon to dismiss the case with costs; and that the terms of the settlement are confidential, but can be disclosed to lawyers, accountants and financial planners.

These terms are expected to be contained in a Release by plaintiff side personal injury lawyers. But sometimes (more often than you would expect) sophisticated insurers and their insureds try to get terms into the Release which fall well outside of the scope of the litigation. The Defendant is trying to get through the backdoor, what they cannot get through the front door.

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Sometimes lawyers are upfront and direct.

Other times, they can be sneaky. It’s those sneaky lawyers that you need to watch out for.

In all of my years of practice, I’ve seen some sneaky stuff. Lawyers and insurers trying to add terms to agreements which weren’t previously discussed, or negotiated. Lawyers and insurers seeking to get in through the back door, what they could not otherwise get in through the front door so to say.

Here are a few examples of those sneaky terms which you should watch out for in the context of your personal injury or long term disability case.

Resignation Clause

A Plaintiff is disabled and his/her claim for long term disability benefits gets denied. The Plaintiff then brings a claim for payment of his/her long term disability benefits. The litigation goes by over the years through the pleadings stage, discovery stage, and then to mediation. But over the years, the Plaintiff does not quit his/her job, get fired, or tender a formal resignation. The Plaintiff is still technically an employee of the company; albeit, and employee who is not working. It can certainly be argued that the employment is frustrated, but that’s an argument for the employer to make.

At mediation the insurer, as a term of settlement requires that the Plaintiff sign a formal resignation from his/her employment in order to get the long term disability settlement. The Plaintiff’s employment is not part of the litigation. If the long term disability case went to trial, the Judge would not be able to make any Order with respect to the employee resigning, or remaining an employee. The Plaintiff’s employment status is a completely separate matter.

Yet, the insurance defence lawyer is insisting that the Plaintiff in the long term disability action sign a formal resignation (without any consideration). The Plaintiff would be sacrificing any potential severance pay, access to other collateral benefits (medical, dental, life etc.) without receiving any consideration save for the long term disability benefits owed to him/her.

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Chronic pain, fibromyalgia and depression are invisible.

That means that they don’t show up on any x-ray, CT Scan, MRI or other diagnostic test. It also means that nobody would know that you are suffering from chronic pain, fibromyalgia or depression simply by just looking at you. It also means that if you tells someone that you are suffering from chronic pain, fibromyalgia or depression; they might not understand; or worse yet; might not even believe that you are suffering. The world is more empathetic and understanding of someone who has a visible injury (like a cast on account of a broken arm) as opposed to someone who is suffering from chronic pain, fibromyalgia or depression.

All of these factors make living with chronic pain, fibromyalgia or depression even harder than it already is.

Adding insult to injury is when your doctor, employer, family members or long term disability insurer doesn’t seem to acknowledge or believe that you are disabled.

It’s an uphill battle. But don’t give up. Goldfinger Injury Lawyers is here to help as best we can.

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Throwing my name “Brian Goldfinger” into the title of the Toronto Injury Lawyer Blog posts makes the post sound like a Young Adult mystery novel. My daughter has found the titles to the Toronto Injury Lawyer Blog posts with my name in them quite interesting. But she has told me that the content of the posts doesn’t quite live up to the hype of the title. Let’s see if we can change that with this instalment.

There are a lot of Long Term Disability Insurance companies out there. Sometimes you get the chose which company you can go through by purchasing individual benefits outside of work directly from an insurer or an insurance broker. Other times, the individual has no choice and goes through their company benefit plan which was negotiated by the company or through the Union. Sometimes a company will switch benefit providers; so you may have stared with one private insurer; and then the entire company switches over to another long term disability insurer.

Sometimes there is choice. Other times, there isn’t choice.

It all depends on the individual facts and circumstances of employment.

Some examples of insurance companies which provide long term disability benefits in Ontario or Canada for that matter include, but aren’t limited to:

  • SunLife
  • Manulife
  • Canada Life
  • Great West Life
  • SSQ
  • La Capitale
  • Blue Cross
  • Industrial Alliance
  • RBC Insurance
  • Co-Operators Insurance
  • Desjardins Insurance
  • Equitable Life

Most auto insurers don’t offer long term disability insurance; the same way that most long term disability insurers don’t offer auto insurance. Although, there are a few companies which offer both. But this is not ordinary in the world of long term disability insurance.

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Not every case is perfect. That’s the reality of the law. Each case has its strengths, and weaknesses. Each case has its own unique set of warts so to say.

Some of these weaknesses can be avoided. Some of these warts can be treated.

As personal injury lawyers, we see clients make mistakes all the time; and that’s ok. Nobody is perfect. But the reality is that many mistakes can be avoided if people understand how the law works; and has a grasp of the consequences of their own actions; or lack thereof.

So without further a due, we will examine the top mistakes which personal injury clients conduct in the course of their accident and long term disability cases. It’s our hope that by understanding some of these mistakes, that personal injury claimants will prevent them from happening to strengthen their claims so they can get the compensation which they deserve.

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