February 2009 Archives

By Shira Bernholtz B.A., LL.B.

Client Services Lawyer, David Share Associates, Lawyers

Yes, they should be paying your Long Term Disability Benefits.  But in the meantime you still have to eat.  When the savings have been used, borrowing tapped out and credit at its limit, social services is an option to consider.

In Ontario, social services (welfare) is an "income of last resort".  You can have a certain level of assets but nothing more.  There has to be no income to the family unit, or at least a low enough income to meet the criteria (based on number of family members and age).*  They demand a lot of documentary evidence and personal information.  The first application is to Ontario Works (OW).  However, the object of this program is to get a person back into the workforce.  Obviously, this is not possible when you are medically disabled.  So you also apply to Ontario Disability Support Plan (ODSP).

ODSP is also a social services but for those medically unable to work.  The monthly benefit is higher than that of OW and there is no requirement that a recipient be looking for work or retrain.  You do have to submit medical forms and documents in addition to financial information.

Besides a monthly monetary payment, ODSP provides a drug benefit card and additional payments throughout the year if you qualify.*   For example, clothing allowances for growing kids or for special diets.  There may also be transportation funds to school or medical appointments.

You do have to repay both OW and ODSP if you receive a long-term disability settlement which covers the same payment period.  Usually the matter runs as follows.  OW approves your application (financial criteria) while you are waiting of the ODSP review of your medical information.  ODSP eventually approves your application, backdating the start of payments.  This means that ODSP pays back OW and provides the difference in the monthly amount to you.

When DSA negotiates a settlement against the insurance company for Long Term Disability benefits, there is an obligation to repay ODSP for any overlapping time.  Most of the time our office has been served with a notice requiring that payment be made directly from us as a deduction form your net receipts.  In any event, you are under a positive obligation to notify ODSP of your settlement and provide repayment is applicable.

*Details of criteria, limits, ceilings and benefit programs change according to politics, social attitudes and the economy. 

Associate Lawyer, David Share Associates, Lawyers

There are many challenges faced by an individual who is struck with a condition that finds him or her unable to work.  It is often an already overwhelming experience in attempting to access the medical system to obtain effective diagnosis, treatment and rehabilitation.  Yet, the person's efforts are sometimes forced to focus elsewhere; without an income, and when the disability benefits on which he or she had expected to rely are terminated or denied, it is the legal system to which the individual is forced to turn.

In these cases, it is especially frustrating for the disabled individual when the insurance company has "determined" that because of "lack of objective evidence", the person is said not to meet the test of disability in his or her insurance policy.

In many cases, the so called "invisible disabilities", such as those arising from chronic pain, depression or anxiety, appear to be poorly understood or recognized by insurance companies and defence lawyers alike.  It often seems this way given the disproportionate number of disability claims that are denied due to these types of disabilities, in comparison with claims based on "objective" disabilities (i.e., disabilities that can be corroborated by medical imaging, blood tests or a physical examination). 

Fortunately, over time, Canadian Courts appear to have become more informed about and sympathetic towards individuals who are disabled due to "subjective" complaints.  In fact, the Supreme Court of Canada has commented on the very real experience of pain that gives rise to disability.  In particular, in Martin v. Nova Scotia, 2003 CarswellNS 360 (S.C.C.), the Supreme Court of Canada determined that a provision of the Nova Scotia Workers' Compensation Act violated the Charter insofar as it prevented chronic pain sufferers from obtaining workers' compensation benefits.  In its reasons, the Supreme Court of Canada made the following comments about chronic pain as a disabling condition:

Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers' compensation schemes in Canada and around the world.  There is no authoritative definition of chronic pain.  It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques.  Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real.

In the judicial environment in which chronic pain and other subjective conditions are becoming better understood and "legitimized", the individual sometimes only needs the right tools with which to work within the legal arena in order to access his or her disability benefits.  Having supportive treating physicians who appreciate one's disabling condition and its impact on one's day-to-day life, remaining compliant with and pro-active about rehabilitation and treatment,  requesting modified duties that one would be able to perform on the job (wherever possible), and retaining a lawyer who understands the nature of one's medical condition and has experience litigating these insurance claims are but a few of the tools that one should use in asserting one's rights to disability benefits.  

So, in jumping through the sometimes additional hoops with which a person is presented in "invisible disability" cases, there is hope that the disabled individual will find legal justice... so that he or she can ultimately entirely focus on his or her medical healing.

By Leanne Goldstein B.A., LL.B. 

Associate Lawyer, David Share Associates, Lawyers

Toronto's Fraud and Waste Hotline has uncovered fraud perpetrated by employees of the City to the extent of over $500,000. Making fraudulent claims to the employee benefit plan administered by Manulife Financial and falsification of medical notes are some of the allegations being leveled against nine staff members.

This does not bode well for those claimants with legitimate disability claims against insurers like Manulife Financial. Whereas in the past insurers might have been more inclined to accept that a claimant was making a disability claim in good faith, insurers are becoming increasingly suspicious. Where insurers find evidence of fraudulent claims, it leads them to be more skeptical of genuine claims.

More insurers are resorting to adjudicating claims on the basis of investigation rather than a pure review of medical documentation. Investigators are hired and instructed to conduct surveillance of claimants in order to determine their levels of activity. Insurers then use surveillance footage to try and attack credibility by suggesting that the claimant is more active than they allege to be.

Some insurers have gone beyond the traditional hiring of an investigator to conduct surveillance and have scoured the Internet to find "information" on a claimant. Exploring websites, Facebook pages, social networking sites where claimants discuss and post their activities and emotions can provide an insurer with information that may not have been accessible in the past.

Sometimes, however, insurers go too far. On a recent mediation, counsel for the Defendant alleged that our client, Ms. D-R, was a fraud. The basis for the fraudulent accusation was the fact that Ms. D-R was allegedly using different names. It turned out that she had a last name that was comprised of both her mother's maiden name and her father's last name separated with a hyphen.

As a result, when documentation was generated by the Ministry of Health, Revenue Canada or other government or private bodies, it sometimes reflected only one of these names. A simple explanation of the anomaly was enough to clarify the issue unfortunately Ms. D-R and her claim had been stigmatized from the outset as a result of the insurer's mindset.

It required legal assistance to uncover the nature of the insurer's hard line approach to her case and to convince the insurer of her good faith.  

By David Share L.L.B.

President, David Share Associates, Lawyers

Most disability policies contain a provision requiring claimants to be under the continuous care of a physician and also require the claimant to be participating in reasonable treatment.

We see many cases where, benefits are terminated due to an alleged failure of the claimant to be under the regular care of a physician and thus a failure to obtain appropriate treatment for their disabling medical condition.

In the case of Andreychuk v. RBC Life, a 44 year-old lawyer's claim for benefits was dismissed on this basis.  The B.C. Court of Appeal distinguished this case from the leading Ontario case which found that continuing treatment or attendance on a physician is not required where such treatment or attendances would serve no practical purpose.    A prior B.C. case was cited for the proposition that it was not established in this case that further treatment would not be beneficial to Ms. Andreychuk.    It was found that had she pursued further treatment she may well have been able to return to her own occupation as a lawyer.

Underlying the court's rationale appears to be a tacit suggestion or implication that if a claimant is not receiving treatment or attending regular doctor appointments that they are no longer disabled.   This is obviously a disturbing conclusion and seems to be a rather closed-minded approach to the obligations of people that are struggling to live as productively as possible with their disabilities.  

There appears to be no real discussion as to the availability of physicians and treatment in Ontario.    Perhaps availability was not an issue in this particular case, but in many of the cases we see, the ability to obtain regular treatment is a major issue.   

What does this mean for the average disability claimant?   In order to avoid being faced with this problem, all efforts should be made to ensure that you are receiving and following the treatment plan that is being prescribed for you.   If access to medical care prevents you from complying with this requirement, all efforts to obtain appropriate medical treatment and the reasons it cannot be obtained should be documented if at all possible, as it will be much more difficult for an insurer to rely on this type of defence to a valid disability claim.