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Articles Posted in Long Term Disability Claim (LTD)

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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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Cases are built upon evidence.

Lawyers will try to highlight certain pieces of evidence in order to better suit, or to create a narrative which suits their client’s best interests.

It’s up to a Judge or a Jury to sift through the evidence in order to determine where the truth.

While lawyers can spin evidence any way they want, there are sometimes objective facts which simply cannot be spun.

With today’s instalment of the Toronto Injury Lawyer Blog, we will try to highlight hurdles which our personal injury lawyers have seen in long term disability cases. Sometimes these hurdles can be cleared. Other times, these hurdles cannot be overcome and really hurt a long term disability case.

Long Term Disability Hurdle #1: The Plaintiff as returned to work. There is nothing wrong with returning to work, so long as you tell your lawyer and don’t hide it. In fact, the Plaintiff has a legal obligation to mitigate his/her damages, which means trying to return to work. We tell our clients that there’s nothing better for a case than a failed return to work attempt. It shows that the Plaintiff tried to mitigate his/her damages by attempting to return to work and that the return to work failed because their injury/disability is bonafide and very serious. If a Plaintiff does not attempt to return to work, the insurer will certainly question why not. If there are notes in the doctor’s records which suggest that a return to work is possible yet was not attempted; the insurer will insist that the Plaintiff has not even attempted to mitigate despite a doctor suggesting that a return to work is possible. Not trying to return to work can delegitimize a Plaintiff’s injury or disability (if a return to work is on the table). If a Plaintiff returns to work without telling their lawyer, or is working under the table for cash it looks like the Plaintiff is trying to pull a fast one on the insurer. This will be frowned upon. This is why it’s so important to have good communication with your personal injury lawyer and fill him/her in on the significant changes in your lifestyle or health. You both want to be on the same page. If your lawyer is advocating for your disability into the future, yet you returned to work months ago; it’s not a good look for your long term disability case.

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On August 10, 2021 the Honourable Justice Grace ordered that “all civil jury trials scheduled to commence in London, Ontario during September, October, November and December 2021 and all civil jury trials scheduled to commence in London, Ontario during September and October 2021” are adjourned. There will be a special civil assignment court to be conducted by teleconference on September 16, 2021 at which time new trial and potentially new pre-trial dates will be set.

The reason for the blanket adjournment of all of these civil trials? COVID-19.

His Honour cited “the impact of COVID-19 on the operations of the Superior Court of Justice and the significant backlog of criminal and family cases”.

Omnibus_Endorsement_of_Justice_Grace_re_civil_trials_for_Fall_of_2021_London (1)

So where does that leave your personal injury or long term disability case?

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Most unionized employees have benefits through their employer. Those benefits have been negotiated by their unions as a perk of employment. They help make life inside and outside of the workplace that much better and add a layer of security and value to one’s employment.

But if you asked a unionized employee what benefits they are covered for, and for what amounts: most will tell you that they aren’t really sure; but they are sure that they are covered for some things (dental, physio, life, disability or something else).

Not every employee memorizes their benefits booklet and that’s ok. Those benefits booklets can also get confusing given that employees are assigned into different categories where insurance benefits and amounts vary depending on the level of seniority or position of the employee.

You union can play a big role, or a small role in your long term disability claim.

Understanding the interaction between the employee and his/her union in the context of a long term disability claim is important. Failure to understand the union’s role can defeat a long term disability claim before it even has the chance of getting off the ground.

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Our law firm receives a lot of calls from people who have been denied Life Insurance, Long Term Disability Insurance, Mortgage Insurance and Critical Illness claims.

Some of these policies are group policies which are offered through an employer.

Sometimes these are private policies which are purchased from an insurance broker or from a bank.

This Toronto Injury Lawyer Blog post will focus more on those private policies which individuals purchase on their own. The thing with private policies is that you need to apply, and qualify for coverage. Monthly premiums vary depending on age, health, disability history, lifestyle choices and other risk criteria.

These risk criteria are examined in detail by an underwriting department at the insurance company.

These underwriters have very important jobs. They have to assess the risk of insuring individuals and put a dollar figure on that risk. Premiums are largely determined based on the risk of insuring the individual and the level or amount of insurance which the individual is seeking.

A life insurance policy which pays out a $50,000 benefit will be less expensive than a life insurance policy which pays out a $5,000,000 benefit.

The same way that a life insurance policy for a 9 year old person will be less expensive than a life insurance policy for a 99 year old.

There are so many factors which go into underwriting that it’s hard to understand. This is why insurance companies narrow down these underwriting criteria based on a set of questions when applying for insurance.

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Lots on people who are applying for Long Term Disability insurance benefits; or who are receiving Long Term Disability benefits want to know why their insurance company is asking (or demanding) that you apply for Canada Pension Plan Disability Benefits (CPP-D).

What does one set of benefits have to do with the other? Why is my long term disability insurer so adamant that I apply?

All of these are great question and as personal injury lawyers who handle a lot of long term disability claims; we see them all of the time.

For starters, contained in the very very fine print of each and every single long term disability insurance policy that we have seen is a provision which states something to the effect that:

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