Articles Posted in Long Term Disability Claim (LTD)

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Are you familiar with the expression “don’t count your chickens before they hatch“?

It means that you shouldn’t depend or rely on something happening, until that thing or event actually happens.

As a personal injury lawyer, I tend to see a lot of this when it comes to long term disability claims.

People think that just because they have long term disability benefits, that they will automatically be entitled to those benefits. Money will rain down from the sky, and will magically appear in your bank account without having done any work for it; or without thinking about how to get approved for those benefits. They are counting the money before they’ve even been approved. They take the approval part from the insurer (which happens to be the biggest step), as a given.

Receiving long term disability benefits isn’t a given, or some sort of mandatory right that is bestowed upon a policy holder. There are a lot of hurdles which need to be cleared before an insurer will even consider an application. And once all of the paper work has been completed, and all of the forms have been submitted, it still does not guarantee that an application for long term disability benefits will be approved.

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Part of the secret to defending a personal injury case, isn’t in the defence of the case on its merits itself. Rather, it’s all about trying to find alternative sources of income or benefits which the Plaintiff is entitled to so that that money offsets any potential award. This way, if even if an at fault Defendant or large insurer looses the case; their damages exposure is limited by the amount of collateral benefits which a Plaintiff has received; or which a Plaintiff is entitled to.

The term collateral benefits is often misunderstood by Plaintiffs, or disability claimants. But, it’s a very important term for any Plaintiff in a personal injury case to understand.

Think of collateral benefits as an amount of money (or benefit) which a Plaintiff is entitled to. The Plaintiff may be receiving that money; or they may not. The money might not be coming in because the Plaintiff has not applied, or thought of applying for that benefit. We see this frequently. There is no playbook for getting injured. Nor is there a playbook for what benefits to apply for after a serious accident, injury or disability claim. Many Plaintiffs don’t know that they might be entitled to benefits; or they don’t know how or when to apply for said benefits. Unfortunately neither the law nor insurers care about that. If you are entitled or eligible for said benefit, you should apply even if you didn’t know the benefit existed. The law will treat the Plaintiff as if they knew about said benefit, and as if they were eligible to receive said benefit; even if they didn’t receive it. The set off will be applied irrespective of whether or not the application for the benefit was made or not.

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Lots of Canadians have been captivated by the Toronto Blue Jays playoff run into the World Series. A ball club which finished last in their division last year has made a historic turnaround which no fans or baseball pundits expected. They are the most mentally tough and resilient professional sports team I can remember.

One of the stories from the Toronto Blue Jays playoff run has been the injuries to the team, and their ability to cope with those injuries in order to compete at the highest level.

This got me thinking as a personal injury lawyer, and drawing comparisons to the injuries in the Toronto Blue Jays lineup and personal injury law. Specifically, dealing with long term disability cases.

When you think of long term disability, you have to think of it in binary or black and white terms. Either you are disabled, or you are not disabled. There is no middle ground or half way. For many people, this can present a major dilemma. The idea of going off work full time is daunting and scary. There is also no guarantee that the long term disability insurer will accept your claim. And if they do, there is no guarantee that your long term disability benefits won’t get cut off for one reason or another. It’s very scary to have to rely on your insurance company to make ends meet as unlike working, the payment of benefits is entirely outside of your control. You don’t know what the long term disability insurer is thinking; nor can y0u predict what they will do. What I recommend people do is expect the worst, but pray for the best.

The Toronto Blue Jays faced this predicament with a few of their players. You see, before a playoff series begins they have to announce their roster. There are limits on the number of players you can have on your roster. You want to have the right balance of starting pitchers, relievers, infielders, outfielders. Once the roster is set, you can’t go back and reset it, so that roster announcement is a very big strategic decision.

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You know when you’ve been approved for Long Term Disability Benefits. That approval will usually come first verbally, and then be formalized in writing.

While, getting something in writing from the long term disability insurer might feel good, it doesn’t mean anything until the payments start coming in.

That rings true in real world examples:

Let’s say you hear from your adjuster that benefits have been approved. Great!

Then, you receive a letter from the insurance company which formalizes the approval in writing. Great again!

But, as Jerry McGuire would say “Show me the Money“.

When the insurer does examines your file, looks at how much money you made, and how much money you’ve received from other collateral sources, it turns out that the benefit owing to you amounts to ZERO! That means that the long term disability insurer’s approval amounts to no tangible benefits for you; even though you’ve been approved. The reality is that you’ve been approved for nothing!

In that same example, it might be that the insurer had been paying you long term disability benefits. Then, they stopped because you received collateral benefits (like CPP Disability Benefits). Then, having reviewed your file, along with the amounts paid to you in long term disability benefits vs. the amounts paid to you in CPP Disability benefits; it turns out that the long term disability insurer over paid you. Now, they are seeking a repayment of benefits due to the over payment. This means that you owe the long term disability insurer money. Imagine that: a person owing an insurance company money for a over payment (completely unrelated to payments of insurance premiums).

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After hearing the news that long time retailer Hudson’s Bay Company declared bankruptcy, my mind immediately went to the employees at HBC. The part timers. The full timers. The seasonal employees. The student employees. The “lifers”. The night shift employees. The early birds who stock the shelves. The office workers. The shipping and receiving crew. The janitorial staff. Everyone who makes the stores work.

I know that life well.

Before I became a personal injury lawyer, I worked retail at Sears Canada while I was in undergrad at York University. I worked in the hardware department and in the paint department. I saw the ins and outs of a large department store. I learned all sorts of things about paint, tools, brushes, stains, lawnmowers, power washers, dehumidifiers…. You name the home appliance/tool, I knew about it.

But, more importantly, I learned a lot about people from all walks of life, and how large publicly traded companies work and treat their workers.

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It’s not mistake that Long term disability claims use the word “long“. Long is used for good reason.

Long is meant to define the duration of the period from the claimant’s first day off work, to the time period they are eligible to receive long term disability benefits. It’s a “long” period in contrast to a “short” period as found in short term disability claims.

Long also defines the duration for which the claimant is eligible to receive long term disability benefits. That period is longer than you would find in short term disability cases. In most long term disability cases, the eligibility period, or payment period, generally goes up to the age of 65. But, this is fact dependent upon the wording contained in the long term disability policy. In contrast, the duration of short term disability benefits is generally a few months (90 days, 120 days). This too is fact dependent and is specific to the wording of the policy. In any event, the use of the word “long” is meant to distinguish from the use of the word “short” in the case of disability policies.

For personal injury lawyers, and for many disability claimants, the use of the word “long” can also mean something completely different. It can be seen as a reminder to the claimant that it may take a long time to get an answer from the insurance company on whether or not the claim for benefits has been approved or denied.

In other circumstances, it can take a long time for the claimant to get paid their benefits, even after they’ve been approved.

For lawyers, the use of the word “long” is a gentle reminder that long term disability cases take time get through the Courts, or to ultimately resolve by way of Judgment or out of Court Settlement. Make no mistake, there is nothing “short” about a long term disability case once it’s been litigated.

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The fine print matters. It especially matters in long term disability claims.

The overwhelming majority of personal injury cases are tort cases. They are not predicated on a contract.

Car Accident Cases

Dog Bite Cases

Slip and Fall Cases

Assault Cases

Product Liability Cases

All of these claims are based on negligence in tort law. They are not based on a contract.

Long Term Disability cases are very different because they are entirely based on contracts. That means that the wording of the long term disability policy (the contract) is very important to whether or not the case succeeds, or fails. One word in the contract can change the entire case.

A Plaintiff can be very seriously injured. But, if the wording of the long term disability contract is not in their favour, they might not win the case.

It’s important for a Plaintiff to know that the wording of every long term disability policy is different. This is significant because just because somebody you know won their long term disability case does not mean that you will win your case as well. There are so many different variables which go in to winning (or losing) a long term disability case. The wording of the long term disability policy is a great place to start.

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This might seem like a very niche topic for the Toronto Injury Lawyer Blog as it relates specifically to Ontario teachers seeking to claim, or who have been denied long term disability benefits by The Ontario Teachers Insurance Plan (OTIP)

The reality is that there are a lot of teachers out there. Teachers have access to long term disability benefits and tend to read blog posts like this. Teaching is a difficult profession where bad days get noticed very quickly by the students and aren’t tolerated. Going in to teach a class day in day out in pain when you aren’t there 100% mentally isn’t good for anyone.

OTIP long term disability polices are some of the most complicated long term disability policies out there. It’s not because OTIP is trying to be difficult towards its membership, or has intentionally made the policies complicated to confuse teachers and to trick them out of getting benefits. It’s just that there are a lot of moving parts for teachers, and a lot of money at stake.

For starters, teachers on average earn a very good and stable income. They generally receive regular raises, and they have access to rehabilitation benefits to help them get better. Teachers are unionized employees as well which adds another layer of potential confusion (like why isn’t my union helping me pursue the long term disability claim?).

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The first long term disability case I had experience with came well before I was a personal injury/disability lawyer.

It happened before I was in law school. It happened to my mom.

She had just gone through multiple surgeries and had not recovered properly, or at all from them. She had been approved for Long Term Disability just before the surgeries took place. She was around 62 years old. After the surgeries, she remained on disability benefits. But shortly there after the long term disability insurer asked that she attend a few “independent” medical assessments with the insurance company’s doctors. She obliged.

Following those assessments, my mom was cut off her long term disability benefits. She was 63 years old, and her benefits were set to expire at the age of 65. She remained at home, in significant pain, and unable to manage her day to day activities of daily living, let along return to any form on employment.

We soon found out that these “independent” doctors who she saw were not really independent. These doctors did minimal to no work through the public OHIP system. Instead, most of their work was generated by referrals from auto insurers, long term disability insurers and WSIB. These doctors did not have a roster of patients who they routinely saw to cure their ailments. Instead, they had institutional clients like insurers, or assessment centres, who referred them people to see on a one shot only basis. After the assessment, they had an army of clerks who would generate reports. The person would arrive at the office for their one and only time to see the doctor. The doctor would check them over, and then someone would generate the report. That report, more often than not went in the favour of the insurer who had referred to doctor the patient in the first place. The doctor would not bite the hand that feeds them so to say.

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Long Term Disability Law can be rather complicated.

It’s complicated because Long Term Disability is based in contract, and every contract is different.

For many people, understanding the words and concepts contained in these long term disability contracts is hard to grasp, and confusing. I can’t say that I blame them.

Take a dog bite case for example. If a dog attacks you, and causes injury to you, then the owner of the dog ought to be held responsible for your injuries and losses.

Long Term Disability cases don’t work that way. Simply because you are disabled, or unable to return to work, does not necessarily mean that you are entitled to long term disability benefits.

And, even if you are eligible for long term disability benefits, the quantum of that benefit, along with the payment duration will be in question as well.

There are a lot of fluctuating variables when assessing and quantifying a long term disability case. We call these moving targets. Those targets don’t move as often, or as frequently, with a straight tort claim, like a dog bite case, as they do with a long term disability claim.

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