Long-Term Disability Law

Chronic Fatigue Syndrome

chronic fatigue syndrome

Chronic Fatigue Syndrome and Long-Term Disability

by Tim Louis

Chronic Fatigue Syndrome is considered by some to be an orphan illness. This is because there is no cure for the disease and because there is no accepted medical test to diagnose it. In fact, many doctors do not recognize it. However, for the individuals suffering this debilitating condition, it is very real. Even what they call it is in dispute. Most patients prefer “myalgic encephalomyelitis,” or ME. However, the medical literature uses “chronic fatigue”.

Chronic Fatigue Syndrome is profoundly disabling. It renders individuals unable to get out of bed for days at a time. Sleep is no longer ever refreshing. It also strikes very quickly – one day the individual is healthy, and the next day the individual wakes up with the sensation of a bad flu. However, the “flu” never goes away. In some cases, it is so disabling as to paralyze a limb or even cause temporary blindness.

It is not unusual for individuals to believe they are going crazy when they first get Chronic Fatigue Syndrome.

Figures for Canada are not available, but it is thought that CFS afflicts between 836,000 and 2.5 million Americans.

For many years, a number of doctors believed the disease was all in the patient’s head.

Chronic Fatigue Syndrome – Denied Long-Term Disability Benefits?

I have represented many individuals suffering from Chronic Fatigue Syndrome. When denied the Long Term Disability Benefits they are entitled to, they hire me to sue their insurance company. One thing I noticed is that “good days” were always followed by “bad days”. In fact, because the “good day” was a gift from heaven, my client would do everything she or he wanted to do on that day. The sad result is that they would then be much much worse the following day. The trick was to always limit their activities on “good days” to half of what they felt they could do. This would result in a much better day the following day.

Long-Term Disability Benefits for Chronic Fatigue Syndrome Denied?

Long Term Disability insurance companies typically reject applications from CFS patients because the patient is unable to objectively prove the presence of the condition. I address this problem head on. I rely on witnesses who give evidence as to my client’s day to day activities. If my client has witnesses that confirm an inability to get out of bed for days on end and an inability to carry on a normal life, then my client’s lawsuit is much stronger.

I also warn all of my Chronic Fatigue Syndrome long-term disability clients that their insurance company will almost certainly hire a private investigator to capture them on video on a “good day”. Insurance companies think this will be devastating at trial. However, as I mentioned above, witnesses who give evidence that my client simply has good days and bad days, will usually outweigh the video evidence.

I have encountered this many times, representing Chronic Fatigue Syndrome long-term disability clients. In one case, one year into the lawsuit, the insurance company hired an actress to knock on my client’s door. When he opened the door, she told him that her car has stalled in front of his house. He willingly agreed to her request that he push her car out of the way. Unbeknownst to my client, all of this was captured on video by the private investigator. Fortunately my client’s landlord was an RCMP officer who was witness to the fact that my client literally spent days on end in bed. The case settled out of court with the insurance company paying my client over $300,000.

If you have Chronic Fatigue Syndrome and your Long-Term Disability insurance company has denied you the benefits you are entitled to, call me for a free initial consultation. I have been suing Long Term Disability insurance companies for over three decades.

Learn More about Chronic Fatigue Syndrome

What is Chronic Fatigue Syndrome?

What is myalgic encephalomyelitis/chronic fatigue syndrome (ME/CFS)?

Chronic fatigue syndrome and fibromyalgia in Canada

 

 

Long-Term Disability Claim


Long-Term Disability Claim

by Tim Louis

Long-term disability insurance is designed to protect you in the event of serious injury or illness. If your psychological or physical condition prevents you from being able to work, the insurance company should pay out a monthly benefit. This is designed to provide some financial support for your care and treatment.
Long-Term Disability Claim

However, Insurance Companies Deny Long-Term Disability Claims

Unfortunately, the reality is that insurance companies deny long-term disability claims. Sometimes rehabilitative therapy for people suffering from a long-term disability can be helpful, but it is not always the case. Permanent disability can sometimes be the result as well. However compensation of long-term disability benefits is the least you should expect if you have insurance.

Dealing with insurance companies can be very difficult, particularly if you are dealing with a serious illness or condition. Having a lawyer, like Tim Louis, to guide and protect you through the process is the key to getting the compensation you deserve. If your long-term insurance claim has been denied, call Tim Louis at (604) 732-7678 for a free consultation.

Long-term Disability Claim Denied

H.G. contacted me just over two years ago. She was referred to me by a previous long term disability client of mine who was very pleased with what I did for her. H.G.’s long term disability insurance company had just denied her claim for LTD benefits. H.G. had lost the ability to work at her very physically demanding position. She had developed Activity-Related Soft Tissue Disorder (ASTD) with myofascial injury to her cervical spine and shoulders. She had also aggravated her pre-existing degenerative disc disease.

She suffered from chronic joint and muscle pain, muscle spasms, numbness, neck pain, shoulder pain and pain and stiffness whenever she would bend, lift or walk.

I immediately obtained a copy of her insurance policy and then filed her lawsuit in the Vancouver Registry of the Supreme Court of B.C. Her insurance company filed a boilerplate response. They actually denied that she was disabled!

Insurance companies take me seriously and so it did not surprise me that fairly soon after the lawsuit had started they began to make offers of settlement. With my client’s instructions I rejected offer after offer.

The insurance company then conducted an Examination for Discovery of my client. At this step in a lawsuit there is no judge present. There is a court reporter who takes down a transcript of all the questions asked by the opposing lawyer and all of my client’s answers. I always prepare my clients extremely well before this step in the lawsuit. With H.G., this was no exception. While H. G. was a credible witness, I knew the insurance company lawyer might try to get her confused and then take advantage of the inevitable inconsistencies as she spoke.

A few days before the Discovery, I engaged her in a mock Discovery so she could practice what it would be like to be under a bit of stress. She did very well at the Discovery. H.G. came across as a likable, believable and reliable witness. After the Discovery, she told me how helpful our preparation together had been for her.

Shortly after the Discovery, the insurance company lawyer asked if we might be agreeable to Mediation. I recommended to H.G. that she accept the insurance company’s suggestion of mediation. Mediation is off the record, that is if settlement is not reached during mediation and the lawsuit proceeds to trial, nothing said at Mediation can be used against the client.

Mediation is a process whereby the parties engage in active negotiation with the assistance of a trained professional mediator. Throughout the day, the mediator will alternate between bringing the two parties together into the same room for face to face negotiations and separating the parties into two separate room shuttling back and forth between the parties. A mediator is different from an arbitrator in that an arbitrator makes a decision that is binding on both parties whether they liked the decision or not. Whereas a mediator only makes recommendations.

At the mediation, the insurance company slowly increased their offer of settlement – one-hundred thousand, one-hundred twenty thousand… two-hundred thousand and then finally two-hundred twenty-five thousand. I calculated that this was more than my client would receive at trial if she won. With great pleasure and a lot of relief, H.G. accepted the offer and we had a settlement. I had achieved the goal I aim for with all of my long-term disability clients – settle for nothing less than trial dollars without going to trial.

Has your Long-Term Disability Claim Been Denied?

If your long-term disability claim has been denied, call Tim Louis at (604) 732-7678 for a free consultation. Get the compensation you deserve.

Get the help you need. Give Tim Louis a call today at (604) 732-7678 for a no-fee telephone consultation, during which he will answer all your questions, no matter how complex. If you have received the insurance claim denial in writing, he will also review the letter and schedule a second no-fee telephone consultation to review and assess that long-term disability claim denial.

Don’t let the insurance company bully you into a settlement. Before you accept any decision, contact Long-Term Disability Lawyer Tim Louis.

Have a question? Use our convenient “Get Help” chat below.

Long Term Disability Plan Regulation

Tim Louis” target=”_blank” title=”Learn more about long-term disability plan regulation in BC”>Learn more about how the BC Government regulates long-term disability plans and long-term disability claims.

Long-Term Disability Lawsuit

Long-Term Disability Insurance Lawsuit

Long-Term Disability Lawsuit:

Expert insights from long-term disability lawyer Tim Louis.

Many of my long-term disability clients are under the mistaken belief that if they win at trial the judge will order the insurance company to pay my client one lump sum equivalent to the amount of each monthly payment multiplied by the number of months from the trial to the date of my client’s retirement. Unfortunately, this is not the case. If you win your long-term disability lawsuit the court will order your insurance company to begin paying you monthly. There will be no lump sum representing what is referred to as “future benefits”.

With the above in mind, I was quite interested in the Court of Appeal decision in a case approximately three years ago. The Plaintiff, Nadine Lydia Gascoigne, had successfully sued Desjardins Financial Security Life Assurance Company for her long-term disability benefits. Her lawyer had asked the trial judge to aware a lump sum for Ms. Gascoigne’s future benefits. The trial judge refused to do so and instead ordered Desjardins to begin making monthly payments. Her lawyer appealed the trial judge’s decision not to award a lump sum for future benefits.

The BC Court of Appeal turned down Ms. Gascoigne’s appeal. Here are two paragraphs from the BC Court of Appeal Decision:

[29] In short, in my view, the trial judge correctly found he was bound by Warrington, as we are, to find that a non-contracting beneficiary of a group policy is entitled to enforce the payment of benefits, but not entitled to terminate the group policy or accept the insurer’s repudiation.

[30] The appellant did not advance any basis other than fundamental breach of the policy as a ground upon which she might be entitled to a lump sum award. It is not necessary, therefore, for us to determine whether such an award can be made for the breach of a disability insurance contract and breach of the duty of good faith. However, in this case, two obstacles stood in the way of such an award. First, the bad faith established was not found to be such as to preclude continuing performance of the parties’ contractual obligations, and second, the appellant’s own expert witness testified that she has “not yet reached the point of maximal medical improvement”. Some further interventions were contemplated, and she would suffer “some degree of vocational disability” for “an unknown period of time”. There was clearly a basis for the judge to say the evidence did not establish that the appellant would remain disabled from any occupation. He could properly regard that as a reason not to grant any relief other than the declaratory order made with respect to continuing benefits.

This means that the law remains as it always has been – if you successfully sue your long-term disability company, you will not be awarded a lump sum for future benefits, but rather begin receiving monthly payments.

Read more about the long-term disability lawsuit case here:

Gascoigne v. Desjardins Financial Security Life Assurance Co. (c.o.b. Desjardins Insurance), [2020] B.C.J. No. 1821, 2020 BCCA 316, British Columbia Court of Appeal, November 3, 2020, M.E. Saunders, P.M. Willcock and G.B. Butler JJ.A.

 

 

 

Client Reviews

Chronic Pain & Long-Term Disability Claims

Chronic Pain and Long-Term Disability Claims

Chronic Pain & Long-Term Disability Claims – Contact Tim Louis

Suffering injuries from an accident or mishap can be a frustrating experience. Ongoing chronic
pain some individuals experience is a general term but is a reality that numerous accident
victims have to learn to cope with even after fulfilling their medical treatments.

If you find it challenging to get through the workday and cannot fulfill your daily work-related
duties or function day-to-day, you are not alone. According to the Canadian Pain Task Force
Report (Sept 2020), an estimated 7.63 million, or 1 in 4 Canadians aged 15 or older, live with
chronic pain.

What is Chronic Pain?

Chronic pain is the result of changes within the nervous system. The nerves continue to fire and signal, leading to pain that remains long after an injury has healed. It may take weeks, months,or even years to completely heal. Lingering chronic pain can take control of your life and causefurther damage, especially to your mental state. Chronic pain can result from a musculoskeletal
injury, nervous system dysfunction, chronic diseases, and autoimmune disorders.

In 2019 chronic pain was recognized by the World Health Organization (WHO) as a disease inits own right for the first time, resulting in updates to the latest (11th) version of the InternationalClassification of Diseases (ICD-11). This distinction is significant as it validates the struggle forthe millions of people around the world who are living with chronic pain.

Chronic pain is classified as chronic primary pain or chronic secondary pain. Acute pain is short-lived and typically lasts no more than 30-60 days, whereas chronic secondary pain can range in intensity and lasts from 6 months or longer.

Chronic Pain Education & Support

For more information, we highly suggest visiting Pain BC, a non-profit, helpful organization that
works to reduce the burden of chronic pain for individuals in BC. They empower people who live
with pain; providing them with a wide variety of helpful, informative resources and the support
required to enhance their well being: https://www.painbc.ca

The Most Common Claims Associated with Chronic Pain

Several injuries are commonly associated with long-term disability claims:

  • Neck pain
  • Lower back pain
  • Shoulder pain
  • Pain stemming from Fibromyalgia
  • Recurring headaches and migraines
  • Cancer pain
  • Arthritic pain
  • Musculoskeletal pain
  • Chronic migraines and headaches
  • Pain associated with Lupus
  • Chest pain
  • Abdominal pain

Symptoms of chronic pain include:

  • Burning sensation
  • Sensitivity to touch, cold, heat, and more
  • Flare-ups
  • Dull Ache
  • Throbbing
  • Soreness
  • Stiffness

What Causes Chronic Pain?

  • Repetitive stress injury, including carpal or cubital tunnel problems
  • Respiratory problems
  • Complex regional pain syndrome (CRPS) and fibromyalgia
  • Neurological problems
  • Loss of hearing and vision
  • Chronic pain after a motor vehicle accident

Filing a Long Term Disability Claim for Chronic Pain

If chronic pain has affected your ability to continue working, you may have the option of
receiving long-term disability benefits if you are covered under such a policy through your
employer. You must however present verification that chronic pain has resulted in the inability to
continue working. The evidence required depends on the nature of your condition and any other
associated ailments.

What You Need to Provide for Filing a Long-Term Disability Claim

To file a disability claim for chronic pain, you must document your symptoms and experiences
and discuss them with a medical professional. Your doctor will assess your medical history and
order x rays, tests, and/or scans to determine if there is joint or tissue damage that may explain
your pain.

Examples of documentation that may be required:

  • Any physician statements and an official diagnosis
  • A journal documenting your pain over time
  • Test results
  • Information about your history of treatment
  • Witness statements from family, friends, and or co-workers who can attest to your
    condition affecting your ability to work and function day-to-day.
  • Any accidental reports

Our Law Firm Provides Results-Oriented Representation for Even the Most Complex Cases.

Do not give up hope if your long-term disability benefits have been denied. If you have been
experiencing chronic pain that has affected your ability to function personally or professionally
and would like to discuss legal options, the compassionate team at Tim Louis Law & Company
will provide you with a free, no-obligation evaluation. We represent clients in a broad range of
injury claims and will take all necessary steps to obtain fair and full compensation for injuries.

Contact us today by calling 604-732-7678 or email us at timlouis@timlouislaw.com

Sources:


https://www.canada.ca/en/health-canada/corporate/about-health-canada/public-engagement/ext
ernal-advisory-bodies/canadian-pain-task-force/report-2020.html

https://www.iasp-pain.org/PublicationsNews/NewsDetail.aspx?ItemNumber=8340

 

 

Client Reviews

Undercompensation of Mental Distress Damages in Disability Insurance

disability insurance - mental distress undercompensation

Disability Insurance: Undercompensation of Mental Distress Damages

Insights into Disability Insurance undercompensation by Long-Term Disability Lawyer Tim Louis

Introduction

Disability insurance is contractual in nature. When a disability insurer denies benefits to a disabled claimant, the claimant may sue for breach of contract to recover the benefits. Additionally, the claimant may seek mental distress damages, punitive damages, and special costs. Mental distress damages are intended as compensation for the claimant’s psychological injury; punitive damages are intended to punish the insurer’s misconduct; and special costs are awarded only in unique circumstances.

This article focuses on mental distress damages. As these damages are compensatory, they are comparable in nature to damages for psychological injuries in tort; yet, mental injuries have given rise to substantially higher quantum awards in tort claims than in disability insurance cases. This disparity is only partially explained by disability insurance claimants’ pre-existing conditions. In this article, we examine this disparity and the case law through which it has arisen, and propose that this disparity has no principled basis.

Contract and Tort Law: Similar Compensatory Principles

Hadley v. Baxendale (1854), 9 Ex. 341 [Hadley], a decision of the Court of Exchequer Chamber, provided that where one party had breached a contract, the other party could claim compensatory damages arising “from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”

In Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30 [Fidler], the court applied the principles of Hadley to a disability insurance contract. The court reasoned that disability insurance contracts are “peace of mind” contracts: the insured party has entered the contract for the tangible benefit of financial payments if disabled, but also for the intangible psychological benefit of having a reasonable expectation of income security. Both parties would have reasonably contemplated these benefits at the time they made the contract. As such, if an insurer wrongfully withheld disability benefit payments, the insured’s mental distress arising from their loss of income security would be compensable, following the principle set out in Hadley.

Psychological injuries are compensable in tort claims through non-pecuniary damages. The courts have implied that the mental distress damages arising from breach of contract should be the same as those arising through a tort claim. In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 [Mustapha], the court stated with respect to damages that “[w]ith regards to Mr. Mustapha’s psychiatric injury, there is no inconsistency in principle or in outcome between negligence law and contract law.” This was followed in Lau v. Royal Bank of Canada, 2017 BCCA 253 [Lau], with the court stating “[t]he test for mental distress damages is, in principle, the same in contract and in tort.”

In Saadati v. Moorhead, 2017 SCC 28 [Saadati], the court determined that a psychiatric diagnosis was not a prerequisite for compensation for psychological injuries in tort law. The court reasoned that the damages awarded for mental injury are not based on the injured party’s diagnosis, but rather on that party’s symptoms and their effects (para 31). While Saadati was based on a tort claim, its reasoning was adopted and applied in Lau for mental distress arising from a breach of contract.

Contract and Tort Law: Similar Tests for Psychological Damages

Where an insurer has wrongfully denied disability benefits, the test for whether to award mental distress damages is provided in Fidler at paragraph 47:

The court must be satisfied: (1) that an object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties; and (2) that the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation

The test for whether to award damages in negligence is set out in Mustapha at paragraph 3:

A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.

These are very similar tests. Firstly, there must be a breach, whether of a contractual duty to pay disability benefits, or of a common law duty.

Secondly, there must be sufficient damage sustained to warrant compensation. In the tort claim in Mustapha, the court set stated that for psychological injury to be compensable, it must be “serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept” (para 9). Similarly, the court in Fidler stated it must be “of a degree sufficient to warrant compensation” (para 47). As noted in Saadati and Lau, this will not necessarily require expert medical evidence.

Finally, the damages must be caused in fact and in law by the breach. In Mustapha, the court found that the plaintiff’s psychological injuries must be a reasonably foreseeable result of the defendant’s breach of its duty of care in order to meet the test for legal causation. The court in Fidler, applying the principles of Hadley, applied a test of whether damages arising would have been in the reasonable contemplation of the parties; this is quite similar to the reasonable foreseeability test in Mustapha.

Contract and Tort Law: Different Quantum Ranges

In Asselstine v. Manufacturers Life Insurance Co., 2005 BCCA 292 [Asselstine], the court reviewed previous awards for mental distress damages in disability insurance, and found they typically ranged between $10,000 – $20,000. The court upheld the trial judge’s award of $35,000, finding this amount to be at the upper end of the range for mental distress damages.

In contrast to Asselstine, tort cases in BC have provided a significantly wider range of damages for psychological injuries. In Hans v. Volvo Trucks North America Inc., 2016 BCSC 1155, the plaintiff in a motor vehicle accident claim suffered debilitating and long-lasting PTSD and Major Depressive Disorder, though he did not sustain any physical injuries. He was awarded $265,000 in his tort claim. In Saadati, the plaintiff in a motor vehicle accident was awarded $100,000 in non-pecuniary damages for his tort claim for psychological injuries alone, despite having significant pre-existing chronic pain and minimal pre-accident income.

In claims for mental distress damages in disability insurance cases, there is the obvious hurdle that the plaintiff will have significant pre-existing conditions – enough to be disabled from working. However, even accounting for this, the courts in BC have awarded quite conservative damages.

In Gascoigne v Desjardins Financial Security Life Assurance Company (Desjardins Insurance), 2019 BCSC 1241, aff’d on other grounds 2020 BCCA 316, the plaintiff initially developed a physical disability. The insurer denied her disability benefit payments. The plaintiff eventually developed depression and anxiety, largely “related to the financial pressures she and her family felt when the plaintiff stopped bringing home an income” (para 36). As a result of the denial of disability benefits, the plaintiff went from being happy and optimistic to withdrawn and distressed about finances. She became less able to cope with the demands of daily life. She separated from her husband and was expecting to divorce. Despite these significant impacts on her life, largely brought about by the insurer’s breach of contract, she was awarded only $30,000 for mental distress.

In Tanious v. The Empire Life Insurance Company, 2016 BCSC 110, aff’d on other grounds 2019 BCCA 329, leave to appeal to SCC refused, the plaintiff was denied disability benefit payments. She had significant disabling conditions, including multiple sclerosis, depression, and anxiety, and she had used illicit methamphetamines to try to cope with her disabling conditions. The insurer’s denial of her disability benefits made her living situation substantially worse. She could not afford good housing or food, and at times could not even have her soiled clothes washed. She had worked hard and paid for her insurance, and she felt she was being looked upon as a liar and a criminal when the insurer rejected her claim. She was awarded a mere $15,000 in mental distress damages.

There may be room to expand the range of mental distress damages in disability insurance claims. The court in Godwin v Desjardins Financial Security Investments Inc., 2018 BCSC 99 stated at paragraph 169:

Had the defendant been responsible for the entirety of the plaintiff’s psychiatric symptoms, an appropriate award may have been in an amount somewhat higher than the $70,000 to $80,000 contended for by the plaintiff. In the present case, the award must reflect the fact that Desjardins’ conduct only marginally aggravated Ms. Godwin’s illness. I award damages for mental distress in the amount of $30,000.

This judgment reflects that future awards for mental distress in disability insurance may come closer to those in personal injury torts. Additionally, in Greig v Desjardins Financial Security Life Assurance Company, 2019 BCSC 1758 the court awarded $50,000 in mental distress damages, though the case is currently under appeal. The majority of cases, however, continue to assess damages within the range set out in Asselstine, despite acknowledging that this range is “modest” (C.P. v. RBC Life Insurance Company, 2015 BCCA 30 at para 65).

Conclusion

The gap in psychological damage awards between disability insurance claims and tort claims is worthy of further examination in the courts. Both areas of law aim to provide compensation for the same types of injury, and the courts have recognized that damages in contract and tort should be similar. To prevent arbitrary distinctions, previous case law setting out a “modest” range of damages in disability insurance cases should not be given undue weight. Instead, case law on psychological damages in both disability insurance and in tort should be considered of equal precedential value with respect to future awards of damages for mental distress.

 

 

Client Reviews

Why You Should Hire a Long-Term Disability Lawyer

Long-Term Disability Lawyer

Why You Should Hire a Long-Term Disability Lawyer

Disability insurance is an affordable option to protect you financially if you have an accident at work and become injured or ill. If you cannot perform your job due to injury, you should receive a monthly benefit resulting from a psychological or disabling physical condition. Sadly, employees are often denied or cut off from receiving benefits before they are able to continue employment. Every insurance policy is unique and outlines conditions that must be met. Although these conditions are outlined, sometimes satisfying these conditions can be challenging.

 

An experienced Long-Term Disability lawyer can help.

If you have applied for long-term disability benefits and your claim has been wrongfully denied, we strongly advise that you hire an experienced Long-term disability lawyer.

 

Why You Should Hire a Lawyer for Long-Term Disability Benefits

  • Communicating with insurance companies can be challenging and stressful. Your lawyer will reduce your stress by handling all the details; so you can focus on your health and well-being.
  • Insurance companies commonly use wording in their policies that can be confusing and may lead to the possibility of damaging your case. A long-term disability lawyer will take charge and will ensure you avoid any pitfalls.
  • Some insurance companies hire Private Investigators to build a case against you by conducting surveillance; documenting your activities and capabilities. They may also edit this footage to discredit you. These are all ways insurance companies can prove to a judge that you are capable of more significant activities than your claim indicates. Your long-term disability lawyer has seen it all before and will guide you through the process and gather evidence to support your claim accurately.
  • Your lawyer will know the information required and the specific questions that need to be asked of your doctor — ensuring that all possible evidence is presented to support your appeal.
    •  

      When You Should File a Claim

      There are statutes of limitations in British Columbia, meaning that there are strict deadlines you must adhere to when you file a disability claim. An experienced lawyer in this area of expertise will ensure that your doctor(s) have provided an adequate amount of information or anything else required to support your appeal. You will want to contact your lawyer as soon as possible to ensure you do not miss any crucial deadlines during the process.

       

      What You Should Do If Your Claim Has Been Denied

      There are several reasons why an insurance company would deny disability benefits:

      • The medical condition does not fall under the definition of ‘disability.’
      • An inadequate amount of evidence to support the injury.
      • The claim was not filed on time.

       

      We highly suggest that you contact your disability lawyer as soon as you find out that your claim has been denied. Even though your claim was denied, this does not necessarily mean your case is closed. A trusted disability lawyer will review your policy and ensure that all information required is submitted to help prove that your condition meets the definition of ‘disability’ according to your insurance policy.

       

      Talk to a Long-Term Disability Lawyer for a No-Obligation, Free Consultation

      You do not have to handle this alone. If your long-term disability claim has been denied, speak with Tim Louis & his compassionate, trusted team of experts by calling 604-732-7678 or email timlouis@timlouislaw.com for a free consultation, and we will provide you with the best possible options.

       

       

       

      Client Reviews

Addiction & Long-Term Disability: Are You Covered for Benefits?

long-term disability and addiction

Addiction & Long-Term Disability: Are You Covered for Benefits?

Addiction resulting from prescription medication, gambling, or other substances, can be mentally and physically debilitating. While some individuals can walk into a casino and gamble a few times a year, others can become chronically addicted. According to the Centre for Addiction and Mental health, 1 in 5 Canadians experience a mental illness or addiction problem in any given year.

Now More Widely Understood, Addiction is No Longer Considered a Choice

Unlike the United States, Canada views addiction as a disease. Human rights legislation protects individuals on the grounds of disability and includes those who suffer from drug and alcohol dependency.

If You Struggle With Addiction, You May Qualify for Long-Term Disability Benefits

Whether or not you qualify for long-term disability benefits from an insurance carrier depends on your employer’s group insurance policy. Specific requirements must be adhered to concerning rehabilitation and or treatment programs to qualify. It is important to distinguish between addiction regarding legal substances (alcohol, cannabis, prescribed medication) and illegal substances (cocaine, meth, heroin).

You can count on the team at Tim Louis Law to thoroughly review your private or group insurance policy to ensure that your rights are protected — providing you with peace of mind that in turn allows you to focus on treatment.

Insurance Companies Routinely Deny Claimants with Substance Abuse Issues

Insurers do not always make it easy to claim disability benefits since many companies do not consider addiction a disability. A qualified long-term disability lawyer can help. Your lawyer will challenge the insurer’s decision on your behalf, as many individuals do not realize that substance abuse is considered a disability in Canada.

Medical Evidence is Integral

Medical documentation as evidence is integral for any disability claim. The claimant must show that their addiction has inhibited their ability to function. The medical evidence must also meet private or group policy standards that dictate the criteria for eligibility.

Treatment Options

Addiction treatment is almost always long-term as relapse is common if undergoing short-term treatment.

Typical treatment options are as follows:

  • Detox
  • Counseling
  • Medication if required
  • Mental health evaluation
  • Treatment for any mental health conditions if necessary
  • Follow-up care for relapse prevention

Gambling as an Addiction

Just as serious of a condition as other more common addictions, compulsive gambling is on the rise in Canada and just as destructive. Gambling addiction leads to a range of personal and social harms such as depression, bankruptcy, anxiety, suicide, and abuse. Unfortunately, in Canada, compulsive gambling may not qualify as a disability.

Compliance Is Key

Compliance is key with regards to disability benefit eligibility. The individual seeking insurance benefits must proactively participate in treatment and/or rehabilitation programs to continue to receive compensation. Failure to do so will result in being disqualified or denied the claim.

Most policies have time limitations that can be difficult to interpret. If your application for disability benefits has been denied by an insurer, do not give up hope. We strongly encourage you to obtain legal advice from a trusted and experienced long term disability lawyer to discuss your dispute case to help navigate your way to a fair and equitable resolution of your claim.

Contact an Experienced & Empathetic Long-Term Disability Lawyer

If you are suffering from an addiction and are unsure if you qualify for long-term disability benefits through an insurer, our trusted and compassionate team at Tim Louis and Company will protect your rights so you can focus on treatment and recovery. Reach out to us by calling 604-732-7678 or email timlouis@timlouislaw.com for a free consultation, and we will provide you with the best possible options.

Source: https://www.camh.ca/en/Driving-Change/The-Crisis-is-Real/Mental-Health-Statistics

 

 

Client Reviews

Disability Claims for Self-Employed Professionals

Disability Claims for Self-Employed Professionals

disability claim for self-employed
If you are self-employed and have purchased a disability insurance policy, you have assumed that this policy serves as income replacement if you are unable to run your business for a period of time due to injury or illness.

Private disability insurance is commonly more expensive than group insurance, and generally, the type of coverage it provides is usually more valuable as it often provides benefits in the event you are unable to work in your regular occupation. Unfortunately, just because you have purchased an insurance policy, this does not necessarily mean that the insurer will not make it challenging for you to receive benefits after you have submitted a claim. Insurers often heavily scrutinize claims submitted by independent, self-employed individuals – this is because of the sometimes-large benefit amounts provided by some of these policies.

Know the Terms & Conditions of Your Insurance Policy

To protect your rights, it is integral that you understand the limitations and restrictions outlined in your disability insurance policy. The definitions of certain disabilities can change over time, so it is important to keep up to date and understand these changes that may apply to you.

Know Your Rights about Disability Claims

Once you have purchased your insurance policy, be sure you are aware that although you have coverage, this does not mean you should “rest easy.” In reality, what you are really buying are rights that you can enforce against your insurer if they fail to provide the protection that was sold to you.

Know the Strict Time Limitations

 Many people do not realize that there are strict limitations with regards to filing a lawsuit against insurers, and oftentimes they are missed. If you do miss a limitation period, the insurance company is not required to pay your claim, and therefore your right to sue them is null in void.

Here some common red flags you should be aware of:

  • The claim is taking an unusually long time to resolve
  • Irrelevant information is asked of you
  • A claim has been denied

Hire An Experienced Disability Lawyer

In many cases, filing a lawsuit is not necessary. The first step involves a demand letter, outlining any discrepancies, pointing out the facts, and the law – with the demand that an insurer complies with the terms and conditions of the insurance policy. Insurance companies are often fully aware when they are not in full compliance, and take advantage of policyholders because most people do not know the law in-depth, and are privy to any red flags before signing off on their policy.

Contact Tim Louis & Company

Insurance companies may deny legitimate disability claims, as the majority of individuals will give up instead of fighting for the monetary compensation they deserve. If you are self-employed and an insurance company has denied your long-term disability claim, the team at Tim Louis and Company is on your side and will fight in your corner.

For a free, no-obligation appointment, contact us today by calling 604-732-7678 or email timlouis@timlouislaw.com

 

 

Client Reviews

Surveillance: How You Can Lose Your Long Term Disability Compensation

long term disability surveillanceHow You Can Lose Your Long Term Disability Compensation

Have you applied for Long Term Disability coverage and have the feeling you are being followed while out in public?

If you have submitted an application for disability or are collecting disability compensation, your intuition may be accurate, as there is a good chance an insurer has hired a professional private investigator to conduct surveillance on you, seeking an excuse to save money and attempt to deny your claim.

Insurance companies, like all businesses, are profit-based and lose money if they approve too many claims — so it is in their best interest to prove that you can work without the need to receive compensation for your reported medical condition.

Disability claims are on the rise, and surveillance is an efficient way for insurance companies to gather evidence against you – intending to prove that you are fully capable of fulfilling your job duties and do not require financial support.

Surveillance May Work Against You

Insurance companies may hire a private Investigator, follow you, or set up surveillance in front of your home to observe your daily activities.

Suppose you applied for Long Term Disability due to back pain and then observed via surveillance moving or twisting your body in a way that contradicts what you detailed in your claim. In that case, your credibility may be diminished and lead to a denial of your Long Term Disability insurance benefits claim.

Be Specific On Your Application for Long Term Disability Compensation

Detailing your injuries and being specific about your abilities on your Long Term Disability application is essential. Provide context and be mindful about anything observed via surveillance that may be used against you.

Such that if you are observed merely walking down the street for a more extended period than you mentioned you were able to in your claim, you could be at risk of losing your Long Term Disability insurance coverage.

The same goes for mental health disability claims. For instance, if you claim that you are chronically depressed and unable to leave your home and then observed via surveillance leaving your home on a daily basis, you may be questioned and risk losing your coverage.

Why Surveillance is Not Reliable

Context is everything when it comes to surveillance with regards to Long Term Disability insurance claims. As mentioned in the example above, surveillance is not a reliable measure to understand one’s abilities.

Video evidence does not present the aftermath of the activity, such as the stiffness and pain you may experience immediately after or the next day resulting from specific activities such as reaching, carrying grocery bags, or shovelling snow.

Fighting Against Surveillance Evidence

  • Ensure that you are truthful regarding your disabilities and injuries from the start. Do not stretch the truth because you think it will be more believable.
  • Take extreme caution when posting on any social media channels. Any comments, videos, or images involving events, activities, sports, or vacations, can be used as evidence to affect your disability claim. Be mindful before you post.

Denied Long Term Disability Coverage? Hire an Experienced Lawyer

If you have Long Term Disability coverage, and if you’re suffering from a debilitating illness or injury, then you deserve compensation, and that’s where Tim Louis and Company can help.

When dealing with a Long Term Disability claim, it is essential that you have an experienced, reputable lawyer on your side that specializes in Long Term Disability cases.

Long Term Disability Lawyer Tim Louis has been representing those who suffer from LTD for over 25 years and has successfully sued some of the world’s largest insurance companies on behalf of deserving clients.

Contact Tim Louis and His Team Today

You owe it to yourself to explore your options. Contact Tim Louis and his compassionate and experienced legal team today by calling 604-732-7678 or email timlouis@timlouislaw.com for a no-obligation consultation. We will make sure to evaluate your situation and advise the best possible options for your unique situation.

 

 

Client Reviews

Disability Insurance: Expansion of Special Costs

Disability Insurance: Expansion of Special Costs

disability insurance
 

Introduction

A recent BC Court of Appeal case, Tanious v. The Empire Life Insurance Company, 2019 BCCA 329 [Tanious], gives disability insurance claimants who take their insurers to court greater prospects of obtaining special costs against their insurer, even absent malicious conduct. However, the specific details of the case are very important. This article analyses Tanious with a view to determining the key requirements that will need to be met in future cases to obtain awards of special costs. Leave to appeal Tanious to the Supreme Court of Canada was denied.

Background

Ms. Tanious was diagnosed with multiple sclerosis shortly before beginning a new job. She nonetheless worked at that job for seven years before ceasing work and claiming disability benefits that she was entitled to through her employment. Following her diagnosis, she developed depression and anxiety, and about a year before ceasing work she started using illicit methamphetamines to cope with her deteriorating cognitive capabilities. The insurer, Empire Life, denied that she became disabled during her employment, and further argued that her substance use disentitled her to benefits. At trial, Mr. Justice N. Brown found that she was entitled to disability benefits, and further awarded her $15,000 for aggravated damages for mental distress, loss of peace of mind and of dignity as a person from Empire Life’s refusal to pay benefits.

At the subsequent costs hearing, Brown J. awarded special costs even though the plaintiff conceded that Empire Life did not commit any litigation misconduct. It is this award that was subject to appeal.

The Appeal of Special Costs

The costs scheme in British Columbia is statutory; Rule 14-1 of the Supreme Court Civil Rules sets out the framework for cost awards. It provides that the court may award special costs, but does not set out the circumstances in which they may be awarded. Generally, special costs are only awarded in cases where there has been litigation misconduct. However, there are exceptions, though these are rarely applied. The Tanious case is an example of one such exception.

Overarching Principles

In order to justify a special costs award, the Court of Appeal stated that it is insufficient to simply have a large discrepancy between taxable costs and actual legal costs. There must be some other “unusual feature” in the case, such as “special importance, difficulty or complexity associated with the litigation” (para. 54). The Court cited a handful of examples where special costs had been awarded despite the lack of evidence of misconduct, and explicitly reiterated that in these cases any award of special costs must be made on a principled basis.

Typically, the objectives of costs awards are to provide the winning party with some degree of indemnity for the costs it has incurred during the litigation. However, the Court of Appeal also recognized that costs awards “encourage settlement, deter frivolous actions or defences and sanction unreasonable conduct committed in the course of litigation” (para. 36). Significantly, the Court also indicated that in some instances, “costs may be awarded to enhance access to justice, mitigate severe inequality between litigants and encourage socially desirable conduct” (para. 36).

The Court cited the leading case of Asselstine v. Manufacturers Life Insurance Co., 2005 BCCA 465, which provides that in the context of these objectives, “the application of ordinary costs rules usually produces a just result,” but goes on to say that this does not mean “that the personal and financial circumstances of a litigant can never be relevant on a costs application” (para. 60). The Court acknowledged that such circumstances may come in to play in exceptional cases.

The Court went on to discuss other cases where special costs were “justified in the interests of justice” (para. 65). Given the circular nature of this proposal – that special costs awards are justified by justice – it is challenging to elucidate principled reasons for these awards when they are not related to reprehensible conduct. Instead, these cases are fact-specific and must be considered based on their own merits.

The Court included in its analysis two analogous cases out of the Court of Queen’s Bench in Alberta where special costs were awarded: Hennessy v. Horse Racing Alberta, 2007 ABQB 178, where a judicial review was required to defend the appellant’s livelihood and restore his reputation; and Meleshko v. Alberta, 2013 ABQB 468, where the appellant sought judicial review to reinstate long-term disability benefits, and punitive damages were not available. As well, the Court cited FIC Real Estate Fund Ltd. v. Phoenix Land Ventures Ltd., 2016 ABCA 303 for the proposition that special costs could be awarded if success in the litigation would otherwise “amount to a strictly pyrrhic victory” (para. 65).

The final significant case referenced in the appeal was Carter v. Canada (Attorney General), 2015 SCC 5, wherein the test for awarding special costs was refined by the Supreme Court of Canada, stating that “the plaintiffs must show that it would not have been possible to pursue the litigation with private funding” (para. 63). In these instances, it is not just to ask the individual litigants or their counsel to bear the cost of pursuing the claim.

Factors in Tanious in support of special costs

On its face, the trial judge in Tanious made the decision to award special costs on the basis of very few factors, none of which are unusual in a long term disability insurance case: the purpose of the insurance contract is to provide subsistence level income, and when the insurer failed to pay these benefits, the plaintiff had to bring a lawsuit, which cost money. However, the Court of Appeal recognized that when the trial judge’s reasons were read as a whole, it was apparent that he also considered “the nature of the case, including its unique characteristics and related litigation challenges, complexities and costs, together with Ms. Tanious’ personal and financial circumstances and her need for counsel as established by the evidence” (para. 21).

The particular litigation challenges of this case included several factors that added to the effort required by counsel. Ms. Tanious was a difficult client to represent. She could not meet at counsel’s office; counsel had to drive to her. Similarly, she could not review documents to prepare for an examination for discovery as it was too stressful, and she likely would not be able to remember what she had reviewed. Additionally, she attended hospital 33 times over the course of the case, and often called her counsel from hospital to ask for help with various other issues. Ms. Tanious attempted suicide more than once as her disease progressed; if she had died, her claim for benefits would have ended. In preparing for this case, it was difficult for counsel to predict what Ms. Tanious would say at trial.

Though the insurer did not commit misconduct, it could have acted better. The trial judge noted that the insurer made only a cursory response to Ms. Tanious’ initial application for disability benefits, but once in litigation, mounted a vigorous defence. In combination with Ms. Tanious’ poor mental health and declining cognitive abilities, the actions taken by the insurer necessitated that she obtain legal representation in order to pursue the benefits to which she was entitled.

Notably, Ms. Tanious had separate counsel for the costs hearing. This was perhaps because her original counsel had to testify at the hearing via affidavit as to the many special circumstances in Ms. Tanious’ case; s. 5.2-1 of the Code of Professional Conduct precludes counsel from testifying to controversial matters. Though it was not mentioned by the Court, as a practical matter, this ethical rule adds to the challenges of obtaining special costs.

Future Implications

The courts now recognize that in matters of insurance disputes and also in other exceptional situations, many people do not have access to justice unless they are able to retain counsel. Access to justice is recognized as being one of the policy objectives of the courts that thus far is not adequately being met (para. 81). As the consequences of these shortcomings become clearer, it may be possible to seek special costs as a means of ensuring adequate access to justice for members of otherwise underrepresented and vulnerable populations.

It can be difficult to make a financially viable practice taking long term disability cases to trial. While aggravated damages are sometimes awarded, they are typically small awards that are woefully insufficient in comparison to the costs of litigation. Punitive damages require misconduct on the part of the insurer. The risk of a special cost award, absent litigation misconduct, provides the plaintiff with more leverage in negotiations with an insurer, and may allow a plaintiff to recuperate the full benefits to which they are entitled, while also appropriately compensating their counsel.

 

 

Client Reviews

Scroll to top