Toronto Injury Lawyer Blog
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.
My mom had her long term disability benefits terminated with only 2 years left of payment owing on the policy. This was not a lot of money for the insurer to pay. But it was a lot of money for my family.
Having practiced in the field of personal injury and long term disability law since 2004, I don’t think that it’s a coincidence that my mom was cut off benefits at the age of 63 with just 2 years of benefits left on her claim.
I see this sort of thing happen time and time again to older disability claimants. The insurer hopes that the disability claimant goes down without a fight. They also hope that they will have difficulty finding a lawyer willing to take on the case. Because you are only fighting over fewer years of benefits, the case becomes a smaller one for the lawyer to take on. Establishing punitive or aggravated damages against an insurer in this example is plausible, but without appropriate evidence, it is difficult to prove. In all likelihood, the insurers have done the math and determined that it’s more cost efficient to terminate benefits than to continue paying them until the age of 65.
So, if this happens to you or a loved one, then what do you do?
You can appeal the decision. I don’t recommend doing that. You’re likely digging your own grave and hurting your case. What you’re helping the insurer establish is a pattern of denials which will be used against you as the case progresses to trial. It’s very persuasive for the insurer to have the ability to call up two separate adjusters at trial. One can comment about the claim when it first began and the initial decision to deny. The other adjuster can speak to the appeal and can corroborate the findings of the first adjuster in support of the denial. The appeal train often does not stop there. It can be sent to a second or even a third level of appeal which means more adjuster to support the denial should the case move to trial.
Insurers in long term disability claims often won’t negotiate, or strike any sort of bargain until a claim has been issued against them. That way they know that you’re serious. They also know that your limitation period has been protected so that case cannot be thrown out on account of failing to commence the action within the time prescribed by the law. Delay is their friend and not yours.
Once a claim has been issued, it then gets looked at with a fresh set of eyes. It appears that the insurer also does a separate bit of calculus knowing that the claimant has lawyered up. Sometimes the cases settle quickly and quietly, where without a lawyer there is no prospect or limited prospect of resolution. Other times the cases run their course through the litigation process.
Regardless of the path which the disability claimant takes, the same things ring true in each instance. If the claimant does nothing, then s/he will get nothing. The money in the form of benefits will not rain down automatically from the sky one day because the insurer has a change of heart and starts being nice. Those sort of things do not happen in real life. Perhaps they happen in the movies, but not in reality.
Insurers will prey on your feelings of sadness, hopelessness and despair to get the results which they want. There is nothing more than they would rather see than having a claimant no challenge the denial and sit idly on it and do nothing. By doing nothing, the insurer wins. By delaying, the insurer wins. When the status quo of the denial is maintained, the insurer wins. In order for the claimant to win, they need to take the courageous step of challenging the denial in Court. It’s not enough to be mad, sad, or upset that the insurer is not seeing the claim the way you want them to see it. A legal action to protect your rights needs to take place, otherwise, the case will be lost before it even has a chance of getting started.
