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Long Term Disability Cases in Ontario: Examining Policies, Limitations and Union Involvement

Long Term Disability cases are complicated. Most people don’t even know what a Long Term Disability Claim even is. To take it one step further, some people who have Long Term Disability coverage don’t even know that they have it, or which insurance company it’s with, how much coverage they have, or the duration of their coverage.

To be fair, the monthly long term disability amount is normally not a fixed amount, rather it’s a fixed percentage based on your annual salary or income. This fixed percentage/amount is subject to a variety of set offs such as CPP Disability benefits, WSIB Benefits, other collateral income benefits etc. The Long Term Disability Benefit can also be subject to a Cost of Living Allowance (COLA) which would increase the monthly LTD benefit based on a fixed inflation calculation.

In any event, calculating the LTD benefit can be tricky, and can be a mathematical challenge for even the finest actuary.

Our lawyers have met clients who were oblivious to the fact that they had Long Term Disability coverage, and only after scouring their benefits booklet with us did we discover that they had coverage. Don’t rely on your union, your HR rep, your manager or your insurer to inform you that you have coverage. It’s your job to know.  If you don’t look after yourself and don’t care about such things, then who will?

Long Term Disability law is one of checks and balances. These cases are contractual cases, and are based on the wording contained in the Long Term Disability policy.

Have you ever read a Long Term Disability policy? They can be long, confusing, and contain many exclusions which aren’t in there for your benefit. The fewer exclusions, the stronger the LTD policy.

Long Term Disability cases are not cases for general damages, i.e.: damages for pain and suffering. What do I mean by that?

It’s not like someone from a large LTD insurer (Great West Life, Manulife, SunLife, Desjardins, SSQ, Industrial Alliance) took a baseball bat and whacked you on the head hoping you would get injured. Not is it like a representative from one of these Long Term Disability insurers intentionally ran you over with their car hoping to render you disabled, only so that they can deny your claim.

In those examples, you would have a claim for general damages (pain and suffering) agains the insurer.

The vast majority of Long Term Disability cases are for Long Term Disability Benefits, which, as discussed above, are calculated based on mathematical equations involving your age, salary, offsets, and LTD benefit percentage.

There are certain cases where the conduct of the Long Term Disability insurer is so outrageous, egregious and inconsiderate that it would amount to a claim for aggravated damages, punitive damages, and/or damages for mental distress. These cases do happen, although I am sad to inform you that they are the exception and not the rule. While I would love to rant about how evil and nasty insurers are, or can be, the reality is that the majority of Long Term Disability claims do not result in awards of punitive damages, aggravated damages, or damages for mental distress. Proving these damages from a Plaintiff perspective is no easy task, but it’s certainly not outside of the realm of possibility (and yes, it does happen on occasion…not every case, but certainly on occasion).

Some questions our long term disability lawyers like to ask prospective clients include, but aren’t limited to:Goldfinger-logo-icon-300x300

  1. How long have you been working for your employer? This is important because under most policies we have seen, there is something called a “Pre-Existing Limitation Period” which excludes all injuries giving rise to your disability in that period of time. What does that mean? Let’s say you have been working at a company for 4 months. There is a Pre-Ex Period of 12 months. You aren’t able to work on account of anxiety/depression. Before your disability, you were being seen by a psychiatrist for your anxiety/depression. The insurer can deny your claim based on the Pre-Ex clause contained in your Long Term Disability policy. Had you worked for 13 months, and then went off work on account of your anxiety/depression, your Pre-Ex period would not be applicable and the insurer would not be able to rely on it. The Pre-Ex is one of the easiest defences for the insurer to rely upon, and certainly one of the more difficult ones for your Long Term Disability lawyer to overcome.
  2. Are you Unionized? This is important for your lawyer, because many policies or Collective Bargaining Agreements contain provisions that all Long Term Disability disputes need to be resolved by way of collective bargaining. That means that you cannot retain a long term disability lawyer on your own (like a lawyer from Goldfinger Injury Lawyers). Instead, you have to rely on your Union to represent you throughout the process. In our experience, some Unions do not have the same experience dealing Long Term Disability claims say as a Long Term Disability lawyer. They also may take a much different approach towards handling your case (more slow, less optimistic, less drive to get results). But all Unions are different. The reality is that some are good. Some are not. Some don’t know what they’re doing. On one case we had, the Union was so small and so inexperienced that their office called our law firm constantly seeking tips and advice. In that case, the lawyer for the LTD insurer felt so bad, that the insurer let our law firm handle the case even though technically it was under the Union’s jurisdiction to do so. Like I said, not all insurers are terribly evil. Some can surprise you!
  3. How old are you? If you are 64 years old, and your Long Term Disability Benefits go up to the age of 65, that means that you are fighting over 1 year of benefits. No matter how disabled you are, 1 year of benefits means 1 year of benefits. On the other end of the spectrum, if you are 40 years old and benefits go up to the age of 65, then you are fighting over 25 years of benefits. Big difference in terms of the size of the case. That’s an example of how facts and circumstances dramatically alter the size of a Long Term Disability case, not based on the medical disability, but based on a person’s base stats (age, income, access to collateral benefits).
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