Toronto Injury Lawyer Blog
If you read the last instalment of the Toronto Injury Lawyer Blog, you would have read all about the confusing world of Long Term Disability policies, how they work; how they don’t work; and how ordinary people find them confusing. If you didn’t catch the last instalment of the Toronto Injury Lawyer Blog; don’t fret! You can read up on it here. Brian Goldfinger thinks that you will find it interesting and informative.
What makes our long term disability lawyers mad or frustrated, is when we see what appear to be otherwise meritorious cases, fail on account of a technicality not caught by the innocent disability claimant who doesn’t know any better.
Enter the recent decision out of Kitchener of Wiles v. Sun Life Assurance Company; released February 15, 2018 by the Honourable Justice G. E. Taylor.
In this case, the Plaintiff commenced an action against Sun Life Insurance for Long Term Disability Benefits. Prior to her disability, she worked at a company called Spaenaur.
The plaintiff states that she became fully disabled as of October 15, 2015, she continued to work full time and perform her employment duties until the date of termination of her employment at the beginning of November 2015. Prior to the termination of her employment, the plaintiff did not request of anyone at Spaenaur to be placed on disability.
In the Attending Physician’s Statement Salary Continuance Services, the plaintiff’s primary diagnosis was stated as “major anxiety disorder”. In the Attending Physician’s Statement Claim for Long-Term Disability benefits, the plaintiff’s symptoms were described as severe anxiety and depression which first appeared on November 3, 2015. The form also described the plaintiff’s symptoms as the result of being dismissed from her employment.
Being diagnosed with a Major Anxiety Disorder, along with severe anxiety and depression is not a good thing for gainful employment. Sometimes pills cure the anxiety and depression. Sometimes counselling helps. Other times NOTHING helps and the disabled plaintiff is NOT able to return to any form of work. That’s a harsh reality our long term disability lawyers see everyday.
For argument sake, let’s assume that Ms. Wilde was totally disabled on account of her major anxiety disorder, server anxiety and depression. The merits of Ms. Wilde’s disability were NOT in dispute for the purpose of the motion brought before the Honourable Justice G. E. Taylor.
What was in dispute was the timing of the Plaintiff’s application for Long Term Disability benefits, along with when she commenced her claim against Sun Life.
Sun Life brought a motion for summary judgment to the Court. This is Sun Life going before a Judge, seeking that the Plaintiff’s case be thrown out for a technical reason. In this case, that technical reason was that the Plaintiff failed to complete her application for LTD benefits and/or commence her action in the requisite period of time (that technicality of Long Term Disability policies rearing it’s ugly head against Plaintiffs).
As an aside, more often than not it’s the insurer relying on these technicalities contained in LTD policies. Rarely do you see a Plaintiff rely on these technicalities to great success. The reason: these policies are drafted by insurers to protect insurers. The policies may give the appearance of security, but in reality, they contain little security for many claimants. But, it’s still better to have a bad LTD policy rather than no coverage at all….
On to the case….
The Honourable Justice Taylor found:
During the course of oral argument, counsel for the plaintiff also conceded that the plaintiff had failed to provide Sun Life with the necessary forms to make a claim for long-term disability benefits within 90 days after the end of the elimination period as required by the terms of the policy. Counsel for the plaintiff acknowledged that the necessary forms were required to be submitted to Sun Life no later than July 31, 2016.
But, the case should not fail solely on the basis that the Plaintiff did not get her forms in to Sun Life within 90 days. There needs to be more. And there was…. Justice Taylor went on to state:
The Statement of Claim in this action was issued on January 20, 2017. At the time of issuance of the Statement of Claim the only defendant was Sun Life. The Statement of Claim makes reference to a “Policy of Insurance” without identifying the policy by number. The Statement of Claim also refers to a “group Disability Policy of Insurance”, again without specifying a policy number.
Commencing an LTD claim without making specific reference to the Policy number or the claim number is not a good idea…..
At the time of the issuance of the Statement of Claim, the plaintiff had only submitted a claim for Salary Continuance Services which was a benefit provided, not by Sun Life, but by Spaenaur. The Statement of Claim alleges that the plaintiff provided Sun Life with proof of her total disability. As of January 20, 2017 the plaintiff had only submitted forms in relation to Salary Continuance Services. It is alleged in the Statement of Claim that Sun Life breached the terms of the Disability Policy in February 2016. This can only be reference to Sun Life advising the plaintiff by way of its letter of February 16, 2016 that it was closing the plaintiff’s claim for Salary Continuance Services because of the failure to provide a completed Attending Physician’s Statement.
I therefore conclude that at the time of the issuance of the Statement of Claim the plaintiff’s action was doomed to fail. Sun Life had no liability to the plaintiff for Salary Continuance Services. Despite the vague references in the Statement of Claim to a “Policy of Insurance” and a “group Disability Policy of Insurance”, these can only have been in relation to Salary Continuance Services (not LTD benefits)
On the issue of relief from forfeiture, Justice Taylor stated:
The plaintiff, however, has put forward no explanation for the failure to make a claim for Long-Term Disability benefits until May 17, 2017. Furthermore, there is no explanation as to why the plaintiff waited until September 29, 2017 to amend the Statement of Claim to seek damages arising out of the failure of Sun Life to pay Long-Term Disability benefits. In her cross- examination, the plaintiff repeatedly stated that she was relying on her solicitor to make the appropriate claims on her behalf. The absence of any evidence from the plaintiff’s solicitor is a glaring deficiency in the evidence on this motion. I assume from the absence of such evidence that there is no viable explanation for the plaintiff’s failure to make a claim to Sun Life for Long-Term Disability benefits within the time periods specified in the policy.
Lesson: Draft your claims properly. Get the applications for LTD benefits in to the insurer in a timely manner. The same applies for LTD claims.
