By Nainesh Kotak
Private long-term disability insurance policies enjoy a reputation for more attractive terms compared with their group policy counterparts, but that doesn’t mean that the injured workers covered by them can expect a smooth ride from their insurer when it comes time to make a claim.
These individually sold policies are a key profit centre for insurance companies, which means that providers are a little fairer towards their insureds in the drafting, in order to match their competition and to keep premiums flowing in.
As a result, it’s not uncommon to see more generous benefits, coverage beyond the age of 65 and longer application of the looser “own occupation” test for coverage, beyond the first two years of benefits.
Sadly, the premium product does not always provide a premium service, and some policyholders need to fight hard to get the benefits they deserve when they are forced off work due to illness or injury.
Recently, our firm represented a career-long salesperson in a lawsuit filed against his private disability insurance provider. Follow the journey he made below and the steps we took with him to successfully resolve his claim.
How it started
After leaving school early, Bryan (not his real name) found his calling in sales, and built a thriving career, earning significant commissions on top of his base salary.
In 2007 — still at a relatively early stage in his work life — Bryan thought he was buying himself some peace of mind by investing in a private LTD policy to protect him should injury or illness prevent him from working at some stage in the future.
Over the next decade or so, Bryan’s diligence in paying his monthly LTD premiums matched his dedication to his chosen profession as his career went from strength to strength, before his health let him down. Unfortunately, his insurer soon would too.
Like many disabled workers, Bryan’s symptoms crept up on him gradually. There was no single traumatic incident event that tipped him over the edge. Instead, he developed chronic pain that eventually made work unbearable, spreading throughout his body, and concentrated in his back, knees, wrists and ankles. In addition, his suffering was compounded by anxiety and depression.
Paper review results in termination of LTD benefits
Bryan’s LTD insurer was initially receptive to his application for benefits, making payments for several months on the basis that he was disabled from performing the essential tasks of his own occupation.
With only an eighth-grade education to fall back on, it was important to Bryan that his private insurance policy used the “own occupation” definition for coverage for longer than the two years it typically applies in group policies provided by many employers.
After two years, the wording of many group policies requires an insured person to be totally disabled from employment in “any occupation” for which they are “qualified or may reasonably become qualified by training, education or experience” — a much tougher standard to meet.
However, even with the looser test engaged, a “paper review” conducted by Bryan’s insurer set his claim back.
This process sees the insurer appoint an expert to review all the medical documents in the injured person’s file, and come to their own conclusion about the person’s treatment options, rehabilitation progress or ability to work — all without ever seeing the claimant in person.
In Bryan’s case, the paper review decided that he was able to continue working in sales and his benefits were terminated as a result. Meanwhile, Bryan continued seeing a counsellor and taking his prescribed medicine, even as the denial exacerbated his stress and depression.
Suing the disability insurer
When Bryan came to us for help and told his story, we were seriously concerned about the treatment he had received from his private LTD insurer, and we filed a lawsuit on his behalf against the provider.
In the meantime, we studied his entire claims file and obtained medical reports from his family doctor and all the specialists who had treated him over the years.
We also commissioned an orthopedic surgeon with expertise in chronic pain to meet with Bryan and provide an opinion on his condition and prognosis going forward, including his ability to continue work as a salesperson.
Depending on a client’s unique health history and relationship with their insurer, we can also bring in general practitioners, physiatrists, and many other types of medical professionals to opine on the issues raised in their case.
However, in Bryan’s matter, the detailed report provided by our expert concluded that he should qualify for benefits — not only under the “own occupation” test, but also under the “any occupation test.” That gave us enough to work with ahead of an early mediation scheduled with representatives from the insurance company.
How we resolved Bryan’s case
Armed with our expert report, we prepared a mediation brief that explained in some detail the unfairness of the termination.
We also used the brief to describe why Bryan’s case could be considered an appropriate one for punitive or aggravated damages, which judges can award at trial to compensate for the harm caused by an insurer’s failure to pay benefits or to punish its bad faith conduct in the handling of an injured person’s case.
By correctly presenting the existing medical documentation and obtaining fresh evidence, we were able to — over the course of the day-long session — help the insurer look at Bryan’s predicament in a new light. By the end of the mediation, the company was prepared to pay a significant sum of money to resolve the case.
It is always a pleasure to help clients like Bryan get the benefits they deserve, even if it is disappointing that they need to obtain legal help to do it. Over many years, Bryan held up his side of the bargain by paying his premiums on time and without complaint, but his private LTD insurer let him down when he need them.
Unfortunately, Bryan won’t be the last person to be treated this way by their insurance company. But, with the help of an experienced disability lawyer to guide you through the process, anyone can fight back and get the benefits to which they are entitled.
If your disability insurance claim has been denied or cut off and you’re considering hiring a lawyer, our blog post has helpful tips and questions you should ask a lawyer before hiring one.
KOTAK PERSONAL INJURY LAW/DISABILITY LAWYERS CAN HELP YOU
We understand that being denied short-term disability or long-term disability benefits can be devastating. Your time to fight your disability insurance company is limited. Please do not delay in calling a short- and long-term disability claim lawyer at Kotak Personal Injury Law. We have successfully sued numerous disability insurance companies including Manulife, Sunlife, Desjardins, Cigna, Great-West Life, Equitable Life, Empire Life, London Life, Blue Cross, AIG, SSQ, RBC, Industrial Alliance, Canada Life, Fenchurch, OTIP, Teachers Life and more.
Call your trusted long-term disability lawyers at 1-888-GOKOTAK or (416) 816-1500. Our consultation is free, and we don’t get paid until you do. We represent disabled people throughout Ontario including Toronto, Mississauga, Brampton, Milton, Georgetown, Orangeville, Oakville, Burlington, Hamilton, St. Catharines, Niagara Falls, Stoney Creek, Kitchener/Waterloo, Cambridge, London, Windsor, Markham, Pickering, Oshawa, Peterborough, Fort Erie, Keswick, Kingston, Ottawa, Barrie, Timmins and other locations.