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Articles Posted in Long Term Disability Claim (LTD)

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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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If you have been denied long term disability benefits, you are likely wondering what your next steps are. The purpose of this week’s installment of the Toronto Injury Lawyer Blog is to give you some tips on what those next steps are towards getting the long term disability benefits which you deserve.

Long Term Disability Benefits are very topical for this week’s blog post given that yesterday was Bell Let’s Talk Day to raise awareness for mental health. The thing about mental health is that it’s invisible. When you break a leg, you’re put in to a cast and the whole world can see that you’re injured and not able to walk properly.

In contrast, mental health is invisible to the naked eye. Everyday people walk around with mental health issues which the outside world isn’t aware of, or doesn’t understand.

This dovetails nicely with long term disability claims not only because mental health can have long term consequences on one’s ability to work; but also because the vast majority of our long term disability clients suffer from mental health issues. It’s because mental health issues are invisible, and can be subjective in nature; which gives long term disability insurers an easy out to write them off as “made up“, “exaggerated“, or which won’t impact your ability to work. Mental health issues won’t show up on an x-ray, CT Scan or MRI. That gives a long term disability insurer a reason to say that the mental health issues which you are struggling with are simply a fabrication of your mind or that mental health isn’t a big deal and that you should be able to work.

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We must admit, long term disability cases can be very strange. Liability and calculating damages is not straight forward like in a dog bite or car accident case. The reason for that is long term disability cases are contractual in nature. That means that they are based upon, and defined by your long term disability contract.

This long term disability contract can be under a group benefits plan, or an individual policy of insurance.

Either way, chances are you haven’t taken the time to read the entirely of your long term disability contract because the majority of people (who aren’t lawyers or insurance professionals) simply don’t. Why curl up with a good book when you can read over your long term disability contract right?

Determining liability in a dog bite case is easy. Bad dog bites innocent passerby and causes damages. Liability has been established and now we can move along to damages.

Calculating damages in a dog bite case is easy as well. What are the injuries; look up similar fact case law and damage awards and then process those figures. Factor in the person’s age, education, employment, and how the injuries impact their daily lives along with any past/future care needs.

It’s not so easy when it comes to long term disability claims. Every contract is different, every disability is different as well. There are lots of terms and conditions contained in the long term disability policies our lawyers have seen which are real head scratchers for our clients.

Here are a few of those clauses which tend to confuse long term disability claimants.

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Buying insurance is more complicated than buying a loaf of bread or a new pair of shoes. For starters, neither bread nor shoes are meant to last a lifetime, nor do they come with a fine print policy or instruction manual explaining what they’re all about. There’s no fine print when it comes to bread or shoes (other than perhaps the list of ingredients contained in the bread).

What you see with bread or shoes, is what you get.

The same can’t be said for purchasing insurance. There are thousands of twists, turns, bobs and weaves contained in each different policy of insurance; regardless of what the insurance is being purchased for. Often what you think you’re purchasing isn’t exactly so; or the insurance product doesn’t work the way you expect it to to work.

Case in point, let’s take the example of long term disability insurance. Here are some common misconceptions:

  1. My long term disability benefits will cover 100% of my income: WRONG! Most policies only cover around 60-80%. Some lesser policies only cover 50% of your pre-disability income.
  2. My long term disability benefits will last for the rest of my life: WRONG! Most policies terminate benefits at the age of 65, despite the fact you may have intended to work until the age of 70. Other less policies only cover benefits for a maximum duration of 5 years, or up to the age of 65; whichever period comes first.
  3. I don’t have to pay any tax on my long term disability benefits. WRONG! Whether or not you pay income tax on your long term disability benefits depends on the wording contained in your policy. Rule of thumb: If your employer pays your premiums, then your long term disability benefits are taxable. Rule of thumb #2: If you lump out your long term disability claim with your insurer; only past benefits are taxable. Future benefits are not.
  4. My long term disability benefits are paid in addition to my CPP Disability benefits and other collateral disability benefits so that I can double dip and make just as much money disabled (or more) than I made while I worked. WRONG! Nearly every Long Term Disability policy our lawyer have seen contains a set of provision whereby to long term disability insurer is entitled to a dollar for dollar set off for any disability income you are receiving; thereby reducing the amount of long term disability benefits owing to you.

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Fibromyalgia is a serious disorder characterized by widespread pain, fatigue, depression, memory loss and other symptoms which vary from person to person.

Some doctors believe in fibromyalgia.

Some doctors don’t.

The same way that some doctors believe that fibromyalgia exists and is a very real and debilitating condition; and other doctors don’t; some insurance companies accept that fibromyalgia is very real and can have a significant impact on a person’s livelihood and ability to engage in day to day activities.

Some insurance companies don’t accept that fibromyalgia is real. They will want to create a narrative that fibromyalgia is a figment of your imagination. They will hope to establish that because you cannot see fibromyalgia on any sort of objective test like an x-ray, CT Scan or MRI Report that it’s simply not there. They will also try to create the narrative that you can fight through or work through whatever pain or ailment it is that you’re experiencing.

This is a false narrative. There are hundreds of thousands of people across Canada who suffer from fibromylagia, and there are countless doctors across the country who treat people for fibromyalgia. Don’t let your insurance company beat you down and crush your hope; because this is exactly what they’re trying to accomplish.

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