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Articles Posted in Long Term Disability Claim (LTD)

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Long Term Disability cases are based in contract. Damages are awarded to the disabled plaintiff based on what is available to the disabled plaintiff under the contract.

Damages for the most part are limited to what’s covered under the four corners of the insurance policy.

Only in rare cases will a court order damages for bad faith against an insurer, or damages for mental distress. These outside of contract damages are awarded only in limited circumstances where there has been egregious conduct by the insurer. These cases are the exception, not the rule.

If you went to trial on a long term disability case, here are the things which a Judge can Order:

  1. The insurance company pay the totality of your back payments (arrears), less any offsets such as WSIB, CPP Disability, ODSP or pension payments
  2. The insurance company has to pay interest on the arrears at a set rate (normally it’s pretty low, it’s currently sitting at 2% for this quarter).
  3. The insurance company re-instate your long term disability benefits (put you on claim). But keep in mind that you are not on claim forever. There is nothing preventing from the insurance company from terminating those benefits again down the line because they believe that you’re no longer disabled. The result is you have to go through the entire litigation process again.
  4. The insurance company MAY have to pay for a portion of your lawyer’s fees (or may not)

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Long Term Disability Claims are NOT claims for pain and suffering.

Long Term Disability Claims are not based in negligence.

Nobody from long term disability insurer ran you over with a truck or hit you with a baseball bat resulting in your disability. You had something completely unrelated to your relationship with the long term disability insurer; before your disability arose. It could be serious medical condition; a bad slip and fall; or a stressful work environment. Nonetheless, the long term disability insurer had nothing to do with giving you the disability in the first place.

To be fair the way a long term disability insurer treats you can result in mental anguish, financial distress or harm. These sort of claims along with bad faith claims handling is a separate tort all together. These cases are the exception, but they certainly do happen.

But the foundation of a long term disability claim are the long term disability benefits themselves; which are a creatures of contract, not tort.

Standing alone from any separate tort or bad faith claim; quantifying the value of arrears and futures is a mathematical equation based in contract. It’s not an imaginary number which is made up by the Court.

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If you haven’t heard of what a COVID Long Hauler is, you should look it up. As a personal injury and long term disability lawyer, I don’t profess to be a medical expert. This is where I defer to the doctors have to say about COVID long haulers and the potential long lasting health implications by those who study COVID at the Mayo Clinic , Harvard Medical School and the Cleveland Clinic.

Tens of thousands of people who have contracted COVID, have been left with lingering symptoms and effects including but not limited to fatigue, body aches, joint pain, coughing, shortness of breath, difficulty concentrating, inability to exercise, loss of taste or smell, headaches, and difficulty sleeping. COVID Long Haulers can’t exert themselves or exercise and simple tasks (like walking to the mailbox or taking out the trash) will often leave them feeling exhausted. Chronic fatigue and chronic pain as being reported with COVID Long Haulers can be incredibly debilitating and frustrating. Many long-haulers also report brain fog, difficultly concentrating or feel like they aren’t as sharp as they used to be.

The reality of COVID is that it’s a new disease which began in an outbreak in around December 2019. Given the newness of the disease, doctors have little data to know the the long term effects or recovery from these long term effects/symptoms. Only time will tell. The vast majority of COVID Long Haulers test negative for COVID after the first few weeks of contracting the disease, despite still having these COVID long haul symptoms.

Long-haulers include two groups of people affected by the COVID:

  • Those who experience some permanent damage to their lungs, heart, kidneys, or brain that may affect their ability to function.
  • Those who continue to experience debilitating symptoms despite no detectable damage to these organs.

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Long Term Disability cases are at their essence, contract cases.

In a long term disability case, there is a contract of insurance between the Plaintiff and the Defendant. The contract is between the Defendant insurance company (Great West Life, Canada Life, Manulife, Sun Life, Empire Life, Desjardins Insurance, SSQ Insurance, Co-Operators Insurance, RBC Insurance, La Capitale Insurance etc.) and the Plaintiff policy holder.

A car accident case for pain and suffering or a dog bite case is very different because there is no contract between the Plaintiff accident victim and the at fault party. These are straight tort cases. Accident benefit cases for first party insurance are certainly different, but the legal principal is the same given that the cause of action for tort cases is not contractural. In both car accident and dog bite cases the cause of action is in negligence against the at fault party.

The policy holder can be a company which covers all of its employees (a group policy through your employer), or it can be an individual policy of insurance.

In the case of an individual policy of insurance, the policy holder goes out and purchases the insurance on their own either directly through the insurance company, or through an insurance broker. The insurance broker may sell a variety of different policies underwritten by a variety of different companies. Variety is the spice of life, so getting options to purchase your insurance is a good thing. That way the consumer can compare and contrast prices, definitions, exclusions and benefits between polices. Having a good and knowledgable insurance broker is very helpful when comparing and contrasting long term disability policies.

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2020 has been a really difficult year for so many people across all walks of life; for so many different reasons.

Where does the hell storm of 2020 start for you? Here are a few line items in no particular order just to put 2020 in perspective:

  • Wildfires blaze out of control and destroy millions of acres of forests in Australia and California. Those California wild fires still blaze. Politicians battle each other whether or not climate change is real
  • Prince Harry and Meghan Markle announce they are “stepping away” from their Royal Duties
  • Iran launches ballistic missiles at two American military bases in Iraq
  • Ukranian flight crashes over Tehran, Iran, killing 176 passengers
  • An impeachment trial for US President Donald Trump. Trump is acquitted. Depending what side of the isle you’re on, this is either fantastic or a disaster. Regardless of your political stripe, it’s a black eye on American politics showing a nation divided
  • Kobe Bryant’s helicopter crashes killing Kobe, his daughter Gigi along with 7 others
  • The UK formally draws out of the European Union. Depending on which side of the political spectrum you’re on, this is either great news, or a catastrophe. Nonetheless, it shows a continent divided.
  • Stock markets crash globally, recording their largest losses on record
  • 2020 Tokyo Olympics postponed.
  • Death of George Floyd. Black Lives Matter protests across America show a country divided
  • Death of Ruth Bader Ginsberg
  • Death of Eddie Van Halen
  • Disneyland closes its doors. First time that’s happened since JFK was assassinated.
  • COVID brings the world to a standstill with over 1,000,000 deaths and global lockdowns.

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More and more; people are purchasing insurance or renewing their insurance policies over the phone. This can relate to car insurance, mortgage insurance, life insurance, disability insurance, critical illness insurance, health/medical insurance. It doesn’t matter what type of insurance it is; the reality is that we are placing more emphasis on purchasing these policies over the phone.

An important decision came across my desk when it comes to the purchase or renewal of insurance over the phone. It’s an important read for anyone. The decision is Estate of Donald Farb v. Manulife et. al., 2020 ONSC 3037; the entirety of which can be read by clicking the link here.

The decision was written by the Honourable Justice E. Belobaba who is one super duper smart Judge. Ready his decision doesn’t require a law degree to understand. It’s easy to read and makes sense to lawyers and non-lawyers alike.

So, if you’re buying insurance; no matter the type over the phone; here’s what you need to know from this decision:

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Long Term Disability benefits flow for many disabled claimants with no issue.

The insurer may from time to time request a report from a family doctor, questionnaire, or request updated clinical notes and records. The insurer may also request that the claimant see their own “doctor” or “specialist” in order to assess their disability.

This is completely normal.

Unfortunately, when this happens, it opens the door for the insurer to interpret the medical data which they have received in such a way to justify a termination of long term disability benefits.

It can be really frustrating, depressing and hard when long term disability benefits get terminated. Like the electric company turning the power off; or like the water company shutting off the water making it difficult; if not impossible to live or to make ends meet.

If only there was a way to get those long term disability benefits reinstated. If only there was a way to get back on claim.

This instalment of the Toronto Injury Lawyer Blog will discuss a reinstatement of long term disability benefits and what factors need to be considered when a reinstatement option is offered.

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Many of our Long Term Disability clients want to know how long term disability cases settle. By this question, what they are really asking is how do they as the client, get paid.

Is it a lump sum payment?

Is it a monthly benefit that the client will receive for the rest of their life?

Are there additional damages for pain, suffering, punitive damages, or damages for mental distress?

Does the client have to pay any tax on the settlement amount? If so, then how much?

All of these are valid questions because there are so many ways which a long term disability settlement can be structured outside of Court.

For starters, in order to achieve any sort of award in a long term disability case, the Plaintiff needs to be disabled. This seems so simple, but for so many clients, it’s hard to understand.

Granted; each policy of insurance carries a different definition of disability. But at the end of the day, if the Plaintiff does not meet the definition of disability under the long term policy, there is a very good chance that the insurance company won’t want to pay out any award.

Under most policies, the definition of disability is loosely defined as over the first two years, the Plaintiff is so injured/sick that s/he cannot perform the regular duties of his/her “own occupation“. This first two years is commonly known as the “own occupation” or “own occ” period.

After the first two years, the definition of disability generally changes to the Plaintiff cannot perform the regular duties of “any occupation” commensurate with their education, training and experience. The availability of work is irrelevant. It doesn’t matter that there aren’t any jobs out there for you. If you can do any job for which you have the education, training and experience, then you won’t meet the test for disability. This is commonly known as the “any occupation” period.

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Let me tell you a story.

It’s about an insurance company which deals with long term disability policies.

The size of the insurance company is irrelevant for this story, because most insurers are very similar in their approach. But in fairness, they are not all the same.

The insurance company underwrites thousands and thousands of group and individual long term disability policies.

If the insurance company pays out long term disability benefits on each and every long term disability claim that gets filed; then their profitability as a company suffers.

If the insurance company does not pay out on each and every long term disability claim that gets filed; then they become more profitable.

The more money which an insurance company pays out in benefits; the less money they get to keep and report as profit.

Some long term disability claims are denied for good reason. Some long term disability claims are denied for other reasons which have little merit.

This is where a personal injury or long term disability lawyer comes in to the mix.

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Determining how much your case is worth in a Long Term Disability Case can be a bit of a weird science. But, there is a method to what many perceive as madness.

Plaintiff side personal injury lawyers would LOVE for your number to be accepted by the long term disability insurer.

Wouldn’t it be great if coming up to a number in a long term disability case was as easy as imagining the highest number in your head, spitting it out, and then the case is settled.

This would be your personal injury lawyer’s dream. The client gets what s/he wants. That number is very high. The lawyer feels great for having achieved such a significant recovery on behalf of his/her client.

Long term disability cases are not cases for pain and suffering. Nobody from the long term disability insurer committed an actionable wrong which led directly to your disability. Meaning, no one from the long term disability insurer ran you over with their car resulting in your disability (unless this actually really happened). For the most part, the disability has little to do with the action(s) of the insurer, and vice versa. While the decision of the insurer to deny, or terminate benefits will likely cause emotional stress and financial duress; it has little to do with the onset of the actual disability giving rise to the claim in the first place.

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