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.
Long Term Disability Hurdle #2: The Plaintiff has not applied for; or has been denied CPP Disability Benefits. Most Plaintiffs don’t know that if they are disabled, they need to apply to the Government of Canada for CPP Disability Benefits. This again speaks to mitigation. A long term disability insurer will have a real hard time disputing that a Plaintiff is disabled if they have been approved for CPP Disability Benefits. While the test for disability are similar but not the same; it’s a really bad look when the Government of Canada has deemed a Plaintiff to be disabled yet a private insurer has denied the disability claim. Just because a Plaintiff has been denied CPP Disability Benefits will NOT stop the LTD claim in its tracks.
Long Term Disability Hurdle #3: The Plaintiff has taken an early retirement BEFORE claiming Long Term Disability Benefits. Under most LTD policies, taking an early retirement estops or caps the Long Term Disability Claim until the date of the early retirement. It’s contradictory for a Plaintiff to claim that they are retired, yet at the same time claim that they are disabled and would be working but for their injury or disability. Unfortunately, under most LTD policies, Plaintiffs are only allowed to choose one track. Either choose early retirement and loose your right to claim LTD benefits or choose the long term disability track. This can be a very difficult decision given that opting for the early retirement is a sure thing. There is no risk in selecting this track because nobody is denying your right to claim an early retirement. But there is risk associated with the long term disability track because the insurer is disputing your disability and inability to work. There is no guarantee of winning the disability case.
Long Term Disability Hurdle #4: The Plaintiff’s Union needs to be involved. Some Unions do great work. Others don’t. Some Unions need to be involved in your Long Term Disability Claim and the dispute must proceed by way of grievance pursuant to the collective bargaining agreement. Some Unions don’t have to be involved in your Long Term Disability Claim and you can retain the lawyer of your choosing. What we have seen is that Unions are good at what they do: severance disputes, disputes regarding hours, worker’s rights, pensions, benefits, working conditions and pay. But litigating long term disability is generally outside of their realm of expertise. If you are able to hire your own lawyer for your long term disability claim without having to go through the Union, you should strongly consider taking advantage of this option and hire a good, experienced long term disability lawyer who knows how the system work.
Long Term Disability Hurdle #5: The Plaintiff has left the country. This is a really tough one for your personal injury lawyer to handle. Most long term disability policies contain a provision that in order for the Plaintiff to be found “disabled“, that s/he must be under the regular care of a doctor or health care practitioner. That doctor or health care practitioner is viewed as their family doctor, treating specialist, or a doctor who is licensed to practice medicine in Canada. Regular care of physicians outside of the country doesn’t count. In the day and age of COVID and with the increased usage of virtual health consultations; this may have lowered this hurdle. It’s possible for a Plaintiff to reside outside of the country and still receive regular care from a doctor virtually. But, often in policies there are residency requirements which require a Plaintiff to remain in Canada in order to qualify for LTD Benefits, except with express permission from their doctor with notice to the insurer that they are leaving the country for important reasons (funeral, illness of a family member). I wouldn’t play the wedding card because the insurer will ask for pictures from the wedding which will likely show the Plaintiff celebrating which is not a good look for a long term disability case.