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Do I have to appeal my Long Term Disability Denial (Ontario)?

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.

This sort of mentality that mental health is a fabrication which can be set aside is simply wrong. Here is what the Supreme Court of Canada in Saadati v. Moorhead [2017] 1 SCR 543 had to say about mental health:

While allegations of injury to muscular tissue may sometimes pose challenges to triers of fact, many physical conditions such as lacerations and broken bones are objectively verifiable. Mental injury, however, will often not be as readily apparent.

….where mental injury is negligently inflicted, a person’s autonomy to make those choices is undeniably impaired, sometimes to an even greater degree than the impairment which follows a serious physical injury (Bourhill v. Young, [1943] A.C. 92 (H.L.), at p. 103; Toronto Railway, at p. 276). To put the point more starkly, “[t]he loss of our mental health is a more fundamental violation of our sense of self than the loss of a finger” (Stevens, at p. 55)…..

The view that a recognizable psychiatric illness requirement is necessary to prevent indeterminate liability, advanced before us by the respondents and the Insurance Bureau of Canada, is similarly untenable.

Insurers want you to quit. They want you to give up. They are banking on you being too depressed, too burned out, too worn down to fight. Don’t let them win. Here is how you win: you don’t give up and you fight.

The reality is that the insurer has something you want. You want benefits and they have the power to pay for those benefits, or not.

In order to get those benefits, you need to jump through a few legal hoops. If you do nothing, you will get nothing.

After you’ve been denied benefits, the insurer will offer you the right to an internal appeal. That means that your file will be looked at by someone at the same company and they will determine if you qualify for benefits. This is hardly a neutral person looking at your file given they are employed by the same insurer which has already denied your claim. The internal appeal serves the insurer more than it serves you in two regards:

  1. It allows the insurer to create a pattern of denials. The first adjuster denied your long term disability claim. And now based on the “impartial internal appeal” a second adjuster has denied your claim. You can then apply for a third appeal, and a fourth. It becomes a very compelling argument before a judge if not one, not two, not three but FOUR adjusters who never met each other all came to the same conclusion and denied your long term disability claim. Very convincing.
  2. It allows the insurer to delay your case risking that a limitation period may lapse. You have two years from the date of denial to commence your action against the long term disability insurance company. If you want for the results of appeal #1, followed by appeal #2, etc., all you are doing is giving the insurer ammunition to raise a limitation defense to have your claim barred.

Once you have been denied long term disability benefits, there is nothing stopping you from lawyering up. Finding a personal injury lawyer would be your best move after you’ve been denied long term disability benefits.Waiting, or appealing is playing in to the insurer’s hands and letting them get further entrenched in their denial. Doing nothing is even worse, and is again playing in to the insurance company’s hands. This is something which you don’t want to do.linkedin-2-300x300

The internal appeal is akin to bringing a rubber knife to battle in a combat zone. You are essentially unarmed in hostile territory without the wherewith all to navigate a field of landmines. Having an experienced personal injury lawyer to help guide you and protect your rights will help.

One final note on strategies following the denial of a long term disability claim: the same way that we encourage you not to give up on your case; we also encourage you not to stop seeing your treating doctors, health care professionals and specialists. Often, insurers deny claimants because they are not getting the treatment they need as prescribed under their long term disability policies. If you fail to get regular treatment, the insurer may see you in violation of the policy. It’s important that you remain in the regular care of your doctor and follow his/her orders. This will be very important for your case on a go forward basis. We appreciate that it’s not always easy to do. But this is all about getting the benefits you need. And sometimes to get those benefits, you have to jump through a few hoops. Doing nothing and giving up isn’t going to get you there.

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