One of the most commonly asked questions of me, Brian Goldfinger, is:
“Do I have a good case?”
It’s generally hard to say whether or not a person has a strong case or not. But there are a few indicators as to the strengths, or weaknesses or one’s case.
This edition of the Toronto Injury Lawyer Blog will focus on case strengths, and case weaknesses as they relate to Long Term Disability cases. In some respects, the same reasoning can be applied to car accident cases, slip and fall cases, dog bite cases etc. But there will be some specifics dealing with Long Term Disability cases which are unique to those sort of claims.
- Age of the Plaintiff and Duration of Long Term Disability Benefits owed. This is crucial to any Long Term Disability case as the age of the Plaintiff, and the duration of time which benefits are owing will establish the start line and the finish line for the case. Irrespective of the merits of the actual disability itself; if benefits are owing up to the age of 65; and the Plaintiff is 64.5 years old; that means your lawyer will be fighting for only 6 months worth of benefits. Depending on your salary; chances are those 6 months of benefits won’t amount to very much. It may cost your lawyer more money on an hourly rate basis to to win those benefits in Court compared to the actual cost of those benefits themselves. That’s not to say that a Judge cannot Order that the insurer pay for a portion of your legal costs, but this is still a risk. Regardless, a very short duration of long term disability benefits does not make for a highly lucrative case.
- Nature of the Disability: Is the Disability an objective one whereby doctors support that the Plaintiff no longer work? Or is the disability of a subjective nature such that some doctors support the disabled Plaintiff, but other doctors are skeptical of his/her injuries? Having a supportive, OHIP funded doctor or treating specialist who the Plaintiff or an insurer is not paying goes a long way to making, or breaking a long term disability case. A doctor who is dismissive and who does not believe in a Plaintiff’s injuries will hurt the case significantly.
- What is the Definition of Disability under the Long Term Disability Policy? Some long term disability polices are better than others. Some have favourable definitions and clauses in favour of the insurer. Others have favourable definition and clauses in favour of the claimant. It all depends on what’s written down in the policy itself. Whether or not you have a strong long term disability case will depend on what’s contained in the policy. This is the master document which provides the framework for any long term disability case. Rule of Thumb: The cheaper the policy’s premiums; the weaker the protections for the claimant under the policy. You get what you pay for. Experienced insurance brokers are greater resources (as are personal injury lawyers) for things to look out for in long term disability polices. Ask for an “own occupation rider” and a “cost of living” clause if you are out purchasing an individual policy. And just because you have protections under a group plan doesn’t preclude you from buying you own individual policy which will follow you from job to job.
- How much money was the Plaintiff earning before the onset of disability? The more money you were earning, the higher the monthly benefit will be. The higher the monthly benefit, the greater the monetary value of the claim (subject to the duration of time which benefits are owing). Higher income earners generally have greater value cases because their monthly disability benefit is higher.
- Has the Plaintiff been awarded CPP Disability? If the Plaintiff has not yet applied for CPP Disability, the insurer will not only make this request, but will also see a dollar for dollar set off for any amount awarded. It’s a standard term contained in the majority of Long Term Disability cases. While the test for CPP (severe and prolonged) is not the same as the a long term disability test; they are NOT dissimilar tests. It’s pretty hard for an insurer to deny the disability if the claimant has been approved for CPP Disability. How is it that the Government of Canada has deemed the Plaintiff to be disabled; yet a private insurer is not. That’s pretty a hard position for any lawyer to take in Court. In most cases, where a Plaintiff has been accepted for CPP Disability, the long term disability insurer will also accept that they are disabled. It gets difficult where the claimant has been denied for CPP Disability, and they’ve lost on appeal to CPP. In those cases, the insurer may chose to dig in their heels and maintain the disability denial.
- Does the Plaintiff have any transferrable skills? This is where a Plaintiff’s higher education can work against them. The greater the education; the more potential for transferrable skills such that the Plaintiff may be qualified to work at another job. If the Plaintiff has the ability or skill set to work another job, the insurer can take the position that that they can work at said job. The availability of work is not relevant. Conversely, if the Plaintiff has limited education and a poor transferrable skill set, this may strengthen the case. It’s one of the few scenarios I can think of where greater education and greater skill set works against a Plaintiff in a personal injury case.
- Likeability! Credibility! Likeability! Does the Plaintiff come across as a likeable and credible witness? Or does the Plaintiff come across as a liar, a cheater and a fraudster looking to pull a fast one on the insurance company? Often what these long term disability cases come down to is whether or not the insurer or Court will accept the Plaintiff’s version of events and will accept their evidence. The evidence of all of the experts will likely cancel each other out. What will stand up and the end of the day is whether or not the Court accepts the Plaintiff as a likeable, credible and disabled person. If the Court empathizes with a Plaintiff, chances are they will have a strong and successful case.
