Long Term Disability cases are based in contract. Damages are awarded to the disabled plaintiff based on what is available to the disabled plaintiff under the contract.
Damages for the most part are limited to what’s covered under the four corners of the insurance policy.
Only in rare cases will a court order damages for bad faith against an insurer, or damages for mental distress. These outside of contract damages are awarded only in limited circumstances where there has been egregious conduct by the insurer. These cases are the exception, not the rule.
If you went to trial on a long term disability case, here are the things which a Judge can Order:
- The insurance company pay the totality of your back payments (arrears), less any offsets such as WSIB, CPP Disability, ODSP or pension payments
- The insurance company has to pay interest on the arrears at a set rate (normally it’s pretty low, it’s currently sitting at 2% for this quarter).
- The insurance company re-instate your long term disability benefits (put you on claim). But keep in mind that you are not on claim forever. There is nothing preventing from the insurance company from terminating those benefits again down the line because they believe that you’re no longer disabled. The result is you have to go through the entire litigation process again.
- The insurance company MAY have to pay for a portion of your lawyer’s fees (or may not)
That’s basically it. The insurer won’t be ordered to pay your future benefits in one lump sum up to the age of 65 or beyond. The insurance adjuster handling your claim will not be sent to jail. The insurance company won’t be ordered to make a donation to your charity of choice to repent for their sins. There is no ticker tape parade to celebrate your victory. The is no public apology or full page ad taken out in a local newspaper announcing the wrongs committed against you. While it’s certainly vindicating to win, it’s largely a court ordered business transaction whereby money goes from one party (the insurance company) to the Plaintiff.
If you went to trial on a long term disability case, here are things which a Judge cannot Order:
- The insurance company does NOT have to pay a lump sum for your future benefits, not can a Judge order that the insurance company pay you benefits for an indefinite period in to the future.
- The insurance company does NOT have to pay a larger monthly disability benefit which is not specified under the policy
- The insurance company does NOT have to pay for your reduced pension on account of your disability
- The insurance company does NOT have to pay for your extended health, dental or life insurance premiums which may not be getting paid for on account of the disability
- The insurance company does NOT have to pay you general damages for pain and suffering
- The insurance company does NOT have to pay an hourly rate for all of the time you have spent dealing with their emails, letters, phone calls, doctors visits etc.
- The insurance company does NOT have to pay for your mileage to/from medical appointments or for your parking bills for the hospital or at medical appointments
- The Judge CANNOT order that the insurance adjuster go to jail for not paying your long term disability benefits. Even if the Judge rules that the insurance adjuster handled your claim in bad faith and caused you mental distress, the insurance adjuster won’t be going to jail over his/her actions. The Judge cannot even order that the insurance company fire the employee for their egregious conduct.
- The Judge CANNOT order that the insurance company offer you a public apology.
- The Judge CANNOT order that the insurance company pay for your spouse’s or children’s pain and suffering in going through this lengthy battle to support your long term disability claim
- The Judge CANNOT order that the insurance company keep you on claim forever, or up to the age of 65 when your long term disability benefits expire.
- The Judge CANNOT order that your length of your long term disability benefits be extended beyond what’s written in the policy
- If your long term disability benefits are taxable, the Judge cannot order that they are no longer taxable
- The Judge CANNOT order that the the insurance company stop sending you for “independent” medical assessments, or stop conducting surveillance on you in the future. Although, if a case is made that these “independent” medical assessments are overkill and that the surveillance has been more intrusive than normal and overly excessive; there is a world where injunctive relief can be granted; but that would likely take place in a separate hearing. We see a lot of cases where car insurers seek to send Plaintiffs for medico-legal examinations and Judges order that they are unnecessary and harmful to the Plaintiff.
- If the insurance company loses at trial, the Judge CANNOT order that the insurer refrain from appealing the trial Judge’s decision. An insurer is free to appeal any trial decision they want which further adds to the litigation burden of the Plaintiff.
A Judge is free to make whatever orders s/he wants. But if the Judge goes outside of the legal framework of what’s permissible under the law, their decision will likely be appealed. Based on what’s permissible at law, there are a lot fewer things which a Judge can rightly Order; compared to the things which a Judge cannot Order an insurer to do at trial.
If you are in a fight with your long term disability insurer; or are contemplating such a fight; keep in mind that the Court’s powers are rather limited in what they can, and cannot order an insurer do. We would love for all of our clients to get their “wish list” of demands met in their cases. Unfortunately, our legal system does not work that way. The law sets parameters on what’s allowed, and what’s not allowed at law. As long term disability lawyer, we have to work within those confines. That’s not to say that advocacy work and real change cannot be achieved outside of the law.
Real change comes from:
- Lobbying all levels of government to make change; and change to laws so that they are more favourable for accident victims and disability claimants instead of large deep pocketed insurance companies
- Raising awareness and fund raising to shine light on injustice
- Participation and community involvement in causes and groups which raise awareness and work to develop and promote positive and meaningful change so that our litigation system works for people instead of the other way around