Toronto Injury Lawyer Blog
One of the most commonly asked questions of clients at my law firm is “how much is my case worth?”
This is never an easy question to answer. When assessing the value of a claim, particularly an LTD claim, there are a variety of factors which need to be examined such as:
- The age of the LTD Claimant
- The duration which benefits are payable under the policy (age 65 or earlier?)
- Were any back payments/arrears paid out by the LTD Insurer or not?
- The value of the monthly LTD benefit
- Are there any set offs which the LTD insurer is entitled to under the policy such as CPP, WSIB or otherwise
- Is there an all source maximum deduction at play
- What are the nature of the injuries causing the disability and are those injuries likely to heal
- What the claimant’s doctors have to say about a potential return to work
- What the insurer doctors have to say about the injuries and the potential return to work
- Has the insurer conducted any surveillance (real time, online, cyber or otherwise) and what does that surveillance show
- What sort of education, training and work experience does the claimant have
- Can the claimant read and write in English or French
- What is the employability potential of the claimant following the LTD claim
- Has there been any bad faith handling of the LTD file on the part of the insurer. If so, what is the nature of that bad faith claims handling and how has it impacted the claimant’s entitlement to LTD benefits?
The value of the LTD claim depends in large part on how the above noted questions are answered, amongst other factors which may be unique to one’s case.
Unlike other injury or accident cases, LTD claims are largely assessed based on mathematical equations. Take the value of the LTD benefit, less any off sets, by the number of months owing in arrears and future benefits owing by the insurer; et voila; you will have the maximum exposure owing by an insurer.
In a car accident claim, the award for pain and suffering, is somewhat subjectively based on historical precedent of cases built over the years. There are different heads of damages for car accident claims such as pain and suffering, past/future income loss, housekeeping claim, attendant care claim, claim for out of pocket expenses, claim for past and future care costs, claim for a modified home or vehicle, family law act claim for loss of guidance care and companionship etc. On the tort end of a car accident claim, there are a variety of heads of damages upon which to base a claim.
LTD claims are different because many of these heads of damages simply don’t exist. LTD claims are contract claims. No contract of insurance; NO CLAIM. Because they are contractual claims, they are based primarily on what’s contained inside of the policy and its wording. These are NOT claims for pain and suffering. These are claims for past and future benefits, based on an amount as defined and calculated pursuant to the policy. Therefore, establishing damages is not based on legal precedent. It’s based on what the policy says, along with the factors set out above.
