Long Term Disability and the Requirement To Be Under the Regular and Continuous Care of a Physician

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.