Matt Lalande is the founder of Lalande Employment Lawyers in Hamilton.
For disability claimants who are unable to work, the process of having their long-term disability (LTD) claim denied or cut off can be frustrating and complicated, and it can cause a person to rocket into financial debt. Many claimants who are left in financial desperation often turn to disability claims lawyers for help.
The first step is understanding
Most claimants do not always understand why they were denied or cut off their benefits.
An experienced disability lawyer, once retained, can fully explain the particulars of their denial letter, disability policy and how it relates to “total disability."
Typically, LTD policies contain a provision that considers a person eligible to receive benefits if they are disabled from working at their own occupation for the two years. After two years, things get more difficult, requiring a claimant to be disabled from performing any occupation for which they are reasonably suited by education, training or experience. There is no doubt that if a claimant is receiving disability, a continuation of receipt of benefits after the initial 24 months can be quite difficult.
In cases of denial, a disability lawyer may file suit against the disability carrier and ask a court to declare the person totally disabled, to award judgment for past benefits, and to declare that the insurance company continue paying benefits into the future. Some lawyers may file suit for punitive and other extra-contractual damages.
Claimants will then attend what is called an “examination for discovery,” which is a procedural step in the disability litigation process in Ontario. This is when the person’s disability lawyer will obtain testimony under oath from the adjudicator that denied the disability benefits. Likewise, the disability carrier’s lawyer will obtain the person’s testimony concerning why they cannot work. During the course of the case, claimants can also expect the insurance company to hire investigators to follow them, take photographs and video, and follow their family’s social media accounts.
The parties then will have the option of obtaining “expert opinions” by independent doctors in the field in of the disability. These experts will provide opinion testimony to a court to either support or discredit the person’s disability. If the disability lawyer is an experienced litigator, they will know the right experts to hire.
Understanding the final steps
At any point in the case, a voluntary settlement meeting can happen. A mediator, who is often a retired lawyer, will try to help settle the claimant’s case with the insurance company. Remember, the disability carrier is never under any obligation to provide a lump-sum settlement, since the payment of benefits are provided under a contract of insurance. However, in some cases, settlements are a beneficial and economic solution to everyone involved – and do happen.
If a settlement happens, claimants can ask their lawyer for a clear explanation about what is being paid. Many clients are unpleasantly surprised at how quickly the value of their benefits (to age 65) sink when applying offsets and discounts. Remember, in a settlement situation, a claimant will never be provided with 60 per cent of their income until 65.
Benefits will be offset by Canada Pension Plan disability, Workplace Safety and Insurance Board or similar coverage, earnings or payments from any employer, self-employment income, and any government plan (except those that are excluded, such as employment insurance benefits). Further discounts are then made based on the present value of remainder benefits. After the offsets and present value is calculated, the remaining amount of calculated benefits may be further reduced to get the case settled.
This is something claimants absolutely need to understand before signing a release and agreeing to withdraw their lawsuit. An experienced disability litigator will be able to provide calculated scenarios.
If claimants do not settle their claim, they will attend a pretrial, which will be presided over by a Superior Court judge (who will not be the trial judge) who will give their judicial opinion to both sides on the merits and risks of the case. If both the mediation and the pretrial fail, the claimant will be heading to court with the onus of proving their disability.
Lastly, remember that during the course of litigation, claimants are not being paid anything. The carrier will only pay if there’s a settlement agreement or the claimant is successful in court.
A disability lawsuit is not for the faint of heart. The process is long, invasive and stressful. However, when a claimant is suffering from a terrible chronic disease, disorder or injury and cannot work, sometimes a court of law is the only option.
This column is part of Globe Careers’ Leadership Lab series, where executives and experts share their views and advice about leadership and management. Follow us at @Globe_Careers. Find all Leadership Lab stories at tgam.ca/leadershiplab.
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