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Articles Posted in Long Term Disability Claim (LTD)

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One of the most commonly asked questions of me, Brian Goldfinger, is:

Do I have a good case?

It’s generally hard to say whether or not a person has a strong case or not. But there are a few indicators as to the strengths, or weaknesses or one’s case.

This edition of the Toronto Injury Lawyer Blog will focus on case strengths, and case weaknesses as they relate to Long Term Disability cases. In some respects, the same reasoning can be applied to car accident cases, slip and fall cases, dog bite cases etc. But there will be some specifics dealing with Long Term Disability cases which are unique to those sort of claims.

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Twitter has it that close to 4,000+/- Ontario lawyers tuned in to an on line professional development program called the Mental Health for Legal Professionals Summit 

That’s a lot of lawyers for one on-line conference; and there’s nothing wrong with that.

In fact, there are a lot of positives to so many attending. It helps shine a light on mental health; it shows that lawyers aren’t invincible and will give those participating some coping strategies. It’s encouraging that during these difficult Pandemic and Lock Down days which have grinded on all of us, that lawyers are open to and receiving help. This is very reassuring and comforting. We all need support systems around us; particularly when isolated away from the workplace; so that we can feel connected and fulfilled.

While we are seeing this with lawyers; we don’t see this in every workplace. This has resulted in what we believe to be a spike in depression and mental health disability related claims.

Unlike a physical injury where an insurer, judge or jury case see the injury; we cannot see mental health injuries.

There are no band-aids, crutches, wheelchairs or canes for depression and anxiety. The co-worker who you see on Zoom may be suffering a lot on the inside; but you can’t tell over your weekly video meeting. They are likely struggling a lot on the inside. Reaching out to them to make sure they’re ok is great; but it doesn’t amount to professional help like counselling, CBT or medication.

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Long Term Disability claims are not claims for pain and suffering or general damage claims.

They are claims for a defined monthly disability amount based on percentage of your pre-disability earnings and last  for a pre determined period of time. Under most policies, that period of time is the age of 65; although some policies have provisions whereby benefits last shorter, or longer. It all depends on what it says in the policy.

When you are receiving long term disability benefits, chances are you won’t be made entirely whole. That means that you won’t be earning as much on long term disability; as you would if you were working and earning an income.

Some policies provide that long term disability benefits are taxable. Some policies state that long term disability benefits are not taxable. Again, it all depends on what the long term disability policy states.

Many people want to know what is the best possible outcome in a long term disability case. This can be a difficult question to answer; given that everyone has different ideas on what the “best” outcome for their case is.

For starters, nobody from the insurance company will be going to jail for having not approved your long term disability benefits; or for cutting you off your claim. In addition, a personal injury lawyer cannot seize the home, car or bank accounts of the person(s) responsible at the insurance company for not approving your claim. These forms of relief simply don’t exist. Although I do suspect if these forms of relief did exist that insurance adjusters would be extra cautious and careful when handling your claim. Not all insurance adjusters are bad people. They do make mistakes from time to time. But that’s no excuse. They aren’t the ones who have to live day to day without being able to work and try to make ends meet.

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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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