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What long term disability insurers count on in defending LTD claims

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.

Insurance companies count on people caving in to their shells. They count on people who are sick on the inside to withdraw.

Getting Long Term Disability Benefits means claiming long term disability benefits. It’s an affirmative step which the claimant (not the lawyer) must first take. There is a lot of paperwork to get the ball rolling.

Insurance companies count on people not taking those affirmative steps to get the claim moving. Long Term Disability Benefits won’t fall down from the sky. Insurance companies count on people; particularly those with mental health issues to do nothing about getting benefits in the first place. That’s how they win a lot of claims. They win those claims simply because the claim isn’t made in the first place. Or if the claim is made; it’s outside of a limitation period under the policy.

Most long term disability policies contain a provision which states that the claim must be made within a specified period of time from the last day of work or the onset of disability.BRIAN-GOLDFINGER-RAPTORS-PODCAST-REPUBLIC-300x169

Take for example a disabled employee who was not able to return to work because of depression. Their last day of work was on January 10, 2020. The policy states that any application for disability benefits must be made or received within 90 days from the last day of work; or from the onset of disability. The injured disability claimant; too depressed to get out of bed most days or do pretty much anything only makes his/her claim well outside of the 90 day window to make a claim. In all likelihood, the claim will be denied at first instance for failure to make a claim within the timeframe specified under the policy. The long term disability insurer will grant the applicant an opportunity to appeal the decision to deny benefits. If the claimant files for the appeal (which they may not), will in all likelihood be denied. Now instead of just one denial on file, there are two separate denials from different adjusters on file. The insurer is doing a great job at not only denying the claim, but also setting up a pattern of denials which makes a compelling case before  a Judge should the matter proceed to trial.

Our lawyers see many long term disability claims which aren’t denied based on the medical merits of the disability. But rather based upon the claimant’s inability to meet the insurer’s timeframes under the policy of insurance.

We often tell people that if you want the long term disability insurer’s benefits; you will have to jump through a few hoops. The insurance company has something which you want (their benefits). These benefits don’t simply magically appear. The claimant has to take some affirmative steps to get on claim. Doing nothing will get you nothing.

This is most commonly seen with the disability claimant who is so depressed, so sad, often suicidal with next to no level of functionality. This person may not even know that they have long term disability benefits to begin with. They have been prescribed medication; which they are now refusing to take because they see no benefit and have given up all hope. Their sleep is erratic because of pain. They have grown completely reclusive from family and friends. Their appearance is disheveled. They may have put on a lot of weight from depressed eating and lack of exercise; or lost a lot of weigh from depression and inactivity. Either way, this person is not in good shape physically or mentally.

Yet, they have access to a private long term disability benefit which may pay them 70% of their net salary up until the age of 65 (but they don’t even know it because their head is in the wrong place). By the time this person is able to think straight and appreciate that financial help may be available to them; it’s often too late. The claim is brought outside of time; making it a challenge to fight. That’s not to say it’s impossible. It just makes for a more challenging claim. It all goes back to jumping through the hoops to get the benefits you need. Now if the claimant is not interested in receiving long term disability benefits; then there’s no need to jump through these so called hoops. But that’s exactly how long term disability insurers win cases. They win them before they even start on account of a lack of knowledge, motivation and apathy by claimants who are too sad and depressed to do anything about it.



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