By David Share L.L.B.
President, Share Lawyers, Lawyers
If
your disability claim has been denied because the insurance company says that
they don't cover pre-existing conditions, you may still be able to do something
about it.
Most Group Long Term Disability Policies have a pre-existing exclusion that will disqualify entitlement for individuals who submit a disability claim for a condition that arose in the period prior to them being covered under their employer's group benefit plan. Historically, the pre-existing exclusion period has been for the 1st year after coverage commences, and it appears that the maximum pre-existing exclusion period should be 2 years, as set out in s.311 of Ontario's Insurance Act. Our office was recently involved in a case where the pre-existing exclusion was 60 months, or 5 years. The case was recently settled, and the issue of the pre-existing exclusion was largely ignored on the facts of this particular case.
So,
if your LTD claim has been denied, based on a pre-existing exclusion that
exceeds 2 years, you should definitely consult with a disability insurance
lawyer, to examine whether the denial of your claim was lawful.
To find out how, contact Share Lawyers. We're Focused on Disability Insurance Litigation.
Our lawyers will fight for your disability insurance claim with aggressive legal maneuvering and strategic planning. If you have a long term or partial disability claim, and have been denied benefits, find out what Share Lawyers can do for you.
]]>If you've considered alternative treatments such as herbal remedies, vitamins or supplements for your depression, you are not alone. Many people with depression have considered them, and they are widely available over the counter.
The jury is still out on how well these remedies work. While some vitamins and herbal supplements may be promising alternative treatments for depression, research is still ongoing. Their efficacy has not been scientifically proven. If your depression symptoms are in part due to some sort of nutritional deficiency, you may benefit from additional vitamin supplementation, but this should be on the advice of your healthcare professional.
If you decide to try natural and herbal supplements, remember that they can have side effects and drug or food interactions. For example, St. John's Wort--a promising herb used for treatment for mild to moderate depression--can interfere with prescription drugs such as blood thinners, birth control pills and prescription antidepressants. Make sure your doctor or therapist knows what you are taking.
· Relaxation techniques. Although research is still ongoing, relaxation techniques may not only help relieve symptoms of depression, but also reduce stress and boost feelings of joy and well-being. Try yoga, deep breathing, progressive muscle relaxation, or meditation.
· Acupuncture. Acupuncture, the technique of using fine needles on specific points on the body for therapeutic purposes, is increasingly being investigated as a treatment for depression, with some research studies showing promising results. If you decide to try acupuncture, make sure that you find a licensed qualified professional.
http://www.helpguide.org/mental/treatment_strategies_depression.htm
]]>
The first step to recovering from depression is not only recognizing the symptoms, but talking to a doctor. Talking with your doctor or healthcare provider about how you're feeling can help them make a proper diagnosis of depression. When you are depressed, you might feel all alone or that it will never get better. But don't lose hope-even the most severe depression is treatable. With the right help and support you WILL feel better. In addition to therapy and lifestyle changes your doctor may recommend medication.
Many researchers share the view that depression is caused by an imbalance of naturally occurring chemicals, known as neurotransmitters found throughout the brain and the body. Neurotransmitters help transport messages between nerve cells. Serotonin and norepinephrine and dopamine are examples of these neurotransmitters. In the brain, serotonin and norepinephrine are thought to be associated with mood as well as regulating and reducing feelings of pain that come from the body. Dopamine is thought to be associated with appetite, loss of pleasure and energy or drive.
There are several types of depression medications used to treat depression and conditions that have depression as a component of the disease, such as bipolar disorder. These drugs improve symptoms of depression by increasing the availability of certain brain chemicals called neurotransmitters. It is believed that these brain chemicals can help improve emotions.
· Tricyclic antidepressants (TCAs) are some of the first antidepressants used to treat depression. They primarily affect the levels of two chemical messengers (neurotransmitters), norepinephrine and serotonin, in the brain. Although these drugs are effective in treating depression, they have more side effects, so they usually aren't the first drugs used.
· Monoamine oxidase inhibitors (MAOIs) are another early form of antidepressant. These drugs are most effective in people with depression who do not respond to other treatments. They are also effective for other mental illnesses. Substances in certain foods, like cheese, beverages like wine, and medications can interact with an MAOI, so these people taking this medication must adhere to strict dietary restrictions. For this reason these antidepressants also aren't usually the first drugs used.
· Selective serotonin reuptake inhibitors (SSRIs) are a newer form of antidepressant. These drugs work by altering the amount of a chemical in the brain called serotonin.
· Serotonin and norepinephrine reuptake inhibitors (SNRIs) are another newer form of antidepressant medicine. They treat depression by increasing availability of the brain chemicals serotonin and norepinephrine.
Depression medication may be the most advertised treatment for depression, but that doesn't mean it is the most effective. Depression is not just about a chemical imbalance in the brain. Medication may help relieve some of the symptoms of moderate and severe depression, but it doesn't cure the underlying problem, and it's usually not a long-term solution. Antidepressant medications also come with side effects and safety concerns, and withdrawal can be very difficult. If you're considering whether antidepressant medication is right for you, learning all the facts can help you make an informed and personal decision about how best to treat your depression.
If you are taking medication for depression, don't ignore other treatments. Lifestyle changes and therapy not only help speed recovery from depression, but provide skills to help prevent a recurrence.
http://www.helpguide.org/mental/treatment_strategies_depression.htm
http://www.helpguide.org/mental/treatment_strategies_depression.htm
· Increases your sense of mastery, which helps if you don't feel in control of your life
· Increases your energy
· Increases self-esteem and confidence
· Provides a distraction from your worries
· Improves your health and body, which can help lift your mood
· Helps you get rid of built-up stress and frustration
· Helps you sleep better, which can often be a problem when you're depressed
· Provides some social interaction
· Releases feel-good brain chemicals that may ease depression
Doing 30 minutes or more of exercise a day, for three to five days a week can significantly improve depression symptoms. But smaller amounts of activity -- as little as 10 to 15 minutes at a time -- can make a difference.
· Set simple goals. It doesn't take much exercise to lift your mood. Set a goal to walk around the block. Promise yourself you'll walk around the block at least 3 times that day. The next day, do more. Try to improve just a little bit each day.
· Go easy on yourself. You might not be able to handle a lot of exercise, so feel good about what you can do
· Do what you usually enjoy. When you're depressed, it's hard to enjoy anything, but think about what you normally like when you're not depressed. If yoga feels good to you, spend a few minutes going through a few simple poses. If you like fresh air, go for a walk or a bike ride. You may not enjoy it in the moment, but even a small change in your mood can make a difference.
· Make it social. Try to find a friend to walk with. Talking to people can help raise your energy and remind you that you're not alone.
· Go outside. Even a little sunshine can help boost your mood and remind you that there's a world out there. You can participate in it as much as you can handle.
· Work with your doctor. Be sure to talk to your doctor about your treatment options and your plans to exercise. He or she may be able to refer you to someone who can help you set up an exercise program.
Whatever you do, remember that you're not alone and that there is hope. Exercise is just one more tool to help with your moods and the sense of accomplishment can add a new dimension to your day--something you can be proud of and feel good about.
HERE ARE SOME FUN AND CREATIVE WAYS TO ADD EXERCISE INTO YOUR DAILY LIFE-
· Walk your dog
· Park a little farther away from your destination
· Bike or walk to work
· Walk around the mall
· Take your kids or friends on a hike/treasure hunt
· Hike/jog to a picnic site with some friends
· Play tag
· Don't take the elevator-take the stairs
· Put on some music and dance
· Clean your house
· Wash your car
· Garden
· Run or walk around your neighbourhood and meet some friends
· Rollerblade
· Swim (your local pool likely has some public swim times)
· Lift weights
· Play sports like soccer, basketball, hockey etc
· Yoga or Pilates
· Stretch
For more information on fighting your insurance company click here
http://exercise.about.com/cs/exercisehealth/a/depression.htm
http://www.mayoclinic.com/health/depression-and-exercise
Nutrition can play a key role, both in the onset, severity, and duration of depression, including daily mood swings. Many of the eating habits that precede depression are the same as those which occur during depression. These patterns may include skipping meals, poor appetite, and a desire for sweets.
In order to help avoid, or mitigate the effects of depression, consider eliminating or moderating your intake of sugar and sugary foods, and caffeine. Get into the habit of eating at least three times a day, including breakfast, replace sweets with fruit and whole grain carbohydrates, eat lean sources of protein several times a day, and drink plenty of water. Focus on a well-balanced diet, including plenty of leafy greens for folic acid, and bananas, avocado, chicken, greens, and whole grains for Vitamin B6. In addition, increase your Omega 3 Fats (salmon, mackerel, and herring). Balancing your blood sugar is very important because there is a direct link between mood and blood sugar balance. Eating lots of sugar is going to give you sudden peaks and troughs in the amount of glucose in your blood; symptoms that this is going on include fatigue, irritability, dizziness, insomnia, excessive sweating (especially at night), poor concentration and forgetfulness, excessive thirst, depression and crying spells, digestive disturbances and blurred vision. Since the brain depends on an even supply of glucose it is no surprise to find that sugar has been implicated in aggressive behaviour, anxiety, and depression, and fatigue, .
Lots of refined sugar and refined carbohydrates (meaning white bread, pasta, rice and most processed foods,) is also linked with depression because these foods not only supply very little in the way of nutrients but they also use up the mood enhancing B vitamins. If you're concerned about getting enough of some of the key nutrients, consult your physician or dietician before supplementing.
Omega-3 fatty acids have innumerable health benefits. Research reveals that a deficit of omega-3 fatty acids is associated with depression. Researchers determined that societies that eat a small amount of omega-3 fatty acids have a higher prevalence of major depressive disorder than societies with ample intake.
The bottom line is that food plays a key role in maintaining mental health. Here are some helpful hints if you or someone you love is suffering from depression:|
EAT MORE: |
ELIMINATE OR EAT LESS: |
|
Fruits |
Sugar and sugary foods |
|
Vegetables (especially colourful vegetables like dark leafy greens, sweet potatoes, carrots, peppers etc |
White bread, rice and pasta |
|
Water |
Cookies and pastries |
|
Whole grains (ie:quinoa) |
Processed foods |
|
Poultry |
Caffeine |
|
Fatty fish (salmon, mackerel, tuna, herring... |
Alcohol |
|
Lean beef |
Juice and pop |
|
Nuts and seeds |
|
|
Low fat cheeses and dairy products |
|
Disability Claim Denied?
For more information on fighting your insurance company click here
The contents of this site are for informational purposes only and are meant to be discussed with your physician or other qualified health care professional before being acted on. Never disregard any advice given to you by your doctor or other qualified health care professional. Always seek the advice of a physician or other licensed health care professional regarding any questions you have about your medical condition(s) and treatment(s). This site is not a substitute for medical advice.
References:
http://www.webmd.com/depression/guide/diet-recovery
http://www.bellybytes.com/articles/depression.shtml
http://www.healingwell.com/library/depression/beardsley1.asp
http://www.foodforthebrain.org/content.asp?id_Content=1635
http://www.depressioncanada.com/
http://www.cmha.ca/bins/content_page.asp?cid=3-86-87
By Steven Muller LL.B, J.D, LL.M.,
Vice-President, Share Lawyers, Lawyers
Most short term and long term disability policies pay a percentage of salary as the benefit. Having the correct salary information can make the difference of thousands of dollars. Typically, the salary information comes from the employer. Salary as defined in most disability policies are base salary and not overtime, bonuses or commissions. The employer reports salary on a periodic basis and premiums are adjusted accordingly.
It is important to ensure that your employer is reporting the correct salary to the insurance company. Premiums that are taken off of your salary do not always reflect your current salary level. At the time of a claim for long term disability benefits, the insurer will be looking at the salary as reported by the employer on the date of disability. If the reported salary and premiums that are taken off are lower then actual salary the insurance company will try to use the lower amount. So before making a claim make sure your current salary is being properly reported to the long term disability insurance company.
]]>By David Share L.L.B.
President, Share Lawyers, Lawyers
Many LTD claims are denied or cut-off on the basis that "sedentary work" can be peformed. Sedentary work is generally defined as follows: exerting (lifting or pushing/pulling) up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) or lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.
The reference to sedentary work is frequently an oversimplification of the restrictions and limitations people on LTD claims have. The focus solely on sitting and standing and/or lifting fails to take into consideration the ability to concentrate and focus on the tasks at hand. Many of the denied LTD claims are for people suffering with "invisible" disabilities where mental health and physical health often collide.
If you have been denied or cut-off because you have been told you can perform sedentary work, you should consult with experienced disability lawyers who can review your circumstances to determine whether you have a viable case to pursue.
By David Share L.L.B.
President, Share Lawyers, Lawyers
Further to our recent blog on "own occupation" and "any occupation" clauses in LTD policies, insurance companies often cite transferrable skills as a reason they have decided they no longer have to pay LTD benefits.
Let's say you have been receiving LTD benefits for a period of time and the insurance company appears to accept that you no longer can do the type of work you used to do. For instance, you used to do work installing computer networks and systems, which required knowledge of computer networks, but also involved certain physical tasks. Due to your illness/injury you can no longer handle that type of work, but the insurance company has determined that you could probably handle "sedentary" work. With, or without the assistance of a vocational assessment, they look at your education and prior experience and decide that you can probably perform a number of alternative jobs that would pay you enough to eliminate any ongoing LTD claim.
Some of the favoured "sedentary" jobs that are noted are, customer service representative, call centre operator, parking lot attendant.....and so on.
Does this mean your claim is over? No. Your particular situation should be reviewed by experienced disability lawyers who can challenge the insurance companies decision to cut you off.
]]>President, Share Lawyers, Lawyers
Under most group Long Term Disability policies disability payments are made during the initial assessment period if you are unable to perform the essential duties of your "own occupation". Most often this period is for 24 months (although it differs from one policy to the next). If you have been receiving LTD benefits and are approaching the end of the Own Occupation period, you may face a termination of your benefits based on the change of definition in what constitutes total disability after the own occupation period expires.
The change of definition is usually referred to as a transition from an "own occupation" definition, to an "any occupation" definition. Typically this means that in order to qualify for LTD benefits in the any occupation period, you must be totally or substantially disabled from the duties of any occupation for which you have the requisite education, skills or experience. There are variations on the wording, but this summarizes the typical "Change of Definition".
You may think that it is impossible, or extremely difficult to persuade your insurance company that you qualify for LTD benefits after this change of definition, but you should not give up hope. With supportive medical evidence, you may have a strong case to fight against the termination of your LTD benefits based on the "Change of Definition".
To find out how, contact Share Lawyers. We're Focused on Disability Insurance Litigation.
Our lawyers will fight for your disability insurance claim with aggressive legal maneuvering and strategic planning. If you have a long term or partial disability claim, and have been denied benefits, find out what Share Lawyers can do for you.
President, Share Lawyers, Lawyers
Under most group Long Term Disability policies disability payments are made during the initial assessment period if you are unable to perform the essential duties of your "own occupation". Most often this period is for 24 months (although it differs from one policy to the next). If you have been receiving LTD benefits and are approaching the end of the Own Occupation period, you may face a termination of your benefits based on the change of definition in what constitutes total disability after the own occupation period expires.
The change of definition is usually referred to as a transition from an "own occupation" definition, to an "any occupation" definition. Typically this means that in order to qualify for LTD benefits in the any occupation period, you must be totally or substantially disabled from the duties of any occupation for which you have the requisite education, skills or experience. There are variations on the wording, but this summarizes the typical "Change of Definition".
You may think that it is impossible, or extremely difficult to persuade your insurance company that you qualify for LTD benefits after this change of definition, but you should not give up hope. With supportive medical evidence, you may have a strong case to fight against the termination of your LTD benefits based on the "Change of Definition".
To find out how, contact Share Lawyers. We're Focused on Disability Insurance Litigation.
Our lawyers will fight for your disability insurance claim with aggressive legal maneuvering and strategic planning. If you have a long term or partial disability claim, and have been denied benefits, find out what Share Lawyers can do for you.
President, Share Lawyers, Lawyers
With some degree of frequency, we see people getting a letter from their disability insurance company saying things like "...as you are no longer disabled, your file has been closed.", or "...as we have denied your claim for disability benefits, your file has now been closed." Don't make the mistake of simply accepting this statement without seeking advice on whether that can really be true.
The truth about such a statement is that the insurance company would like your file to be closed, and they hope that you simply accept the statement without questioning it. After all, how can you question or fight a decision made by a large insurance company with unlimited resources?
To find out how, contact Share Lawyers. We're Focused on Disability Insurance Litigation.
Our lawyers will fight for your disability insurance claim with aggressive legal maneuvering and strategic planning. If you have a long term or partial disability claim, and have been denied benefits, find out what Share Lawyers can do for you.
]]>
By David Share L.L.B.
President, Share Lawyers, Lawyers
The recent mistrial in the Mendieta murder trial in Toronto has some lessons for people involved in civil litigation as well. In the Mendieta case, a mistrial was declared because a Crown lawyer who had handled the previous murder trial, where a verdict could not be reached, was present in the courtroom during the cross-examination of Ms. Mendieta, all the while allegedly making faces that the jury, not to mention the witness, found distracting.
There is no doubt that such conduct cannot be tolerated and the resulting mistrial is at great expense to the taxpayers and also the parties involved in the matter. It will likely put the outcome of the case very much in doubt, one way or the other.
In Civil lawsuits, such as disability litigation or personal injury matters, a party smirking in the courtroom at the jury or the witnesses could just as easily result in a mistrial. The lesson of this story goes beyond cases that proceed to trial. It underscores that parties engaged in any type of litigious matter must show respect for the process and the participants in the matter. Poor or disrespectful behavior is unlikely to result in a favourable settlement or negotiation at mediation, and poor behavior during examinations for discovery by witnesses or counsel gives the process a bad name.
Respectful disagreement and submissions are an obvious part of passionate advocacy, but the system only works if all parties are given a voice. As lawyers who represent plaintiffs in their insurance disputes, we take this obligation seriously. Providing passionate, respectful representation so that our clients are given a voice that follows these principals.
]]>By David Share L.L.B.
President, Share Lawyers, Lawyers
A recent case, illustrates just how much money gets thrown around by insurance companies in their efforts to grab further market share. The Ontario Superior Court released its' decision in Sun Life v. Metropolitan Life, 2010 ONSC 558 (CanLII) on January 22, 2010. This case is a reminder of the type of stakes involved when one insurer acquires another. In July, 1998, The Mutual Life Assurance Company of Canada (which changed its' name to Clarica and was then purchased by Sun Life in December 2002), paid $2.2 billion dollars to Metropolitan Life for its' Canadian life insurance related businesses.
The case is about one insurer alleging that they are entitled to further reimbursement or indemnification from liabilities flowing from policies issued by Metropolitan Life prior to its' takeover by Sun Life. The concern that Sun Life has is that they do not wish to be stuck with the cost of fixing the cost structure of certain policies that Met Life had issued in the past, where their allegations of misrepresentations about the cost of these policies to the end individual policyholders.
The ins and outs of this particular case will not matter to you if your claim has been denied, be it for long term disability benefits, life insurance or critical illness, but it certainly does reinforce the notion that money really does matter to insurance companies. Does anything else matter to them? Absolutely, just nothing matters more than money.
Associate Lawyer, Share Lawyers, Lawyers
In order to successfully litigate a motor vehicle accident tort claim, it is not enough to prove that the "at fault" driver collided with your vehicle, or did something negligent on the road that resulted in an accident. It is also necessary to prove that the negligence of the other driver caused your injuries and subsequent medical problems.
This is the concept of "causation", which is fraught with complexities given that most accident victims are not 21 year old athletes that have never had an injury or illness in their lifetime. Most motor vehicle accident victims have a history of health issues and of underlying health problems that have affected them at one time.
The "thin skull principle" of causation, which has developed in our law, makes the "at fault" driver liable for your injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. Where the negligent conduct of an "at fault" driver "materially contributes" to the occurrence of the post accident problems, the "at fault" driver may be found liable for all of the injuries sustained as a result of the motor vehicle accident.
Essentially, a "thin skull plaintiff" is someone who has a latent, pre-existing condition or vulnerability to injury which is brought to the fore by the motor vehicle accident and which would not have presented itself had the accident not occurred. So for example, someone who suffered abuse as a child may be more fragile psychologically and more vulnerable if they suffer an adverse life event. Accordingly, such a person might be more likely to suffer more severe depression as a result of a motor vehicle accident that appears to have been minor. Had the accident not occurred, this person may never have experienced severe depression.
This is to be distinguished from the "crumbling skull" plaintiff which is someone who has a pre-existing illness or medical condition which would have come to the fore even if the accident had not occurred. For the "crumbling skull" plaintiff the accident may, however, have accelerated the presentation or evolution of the illness or medical condition and this may entitle that person to some measure of compensation in the appropriate circumstances.
If it cannot be established that the motor vehicle accident caused or contributed to the plaintiff's condition, which would have remained the same even if the accident had not occurred, causation will not be established and no compensation can be recovered.
Medical evidence is essential in establishing causation and treatment providers and medical experts are often called upon to address this issue. Since there are often multiple causes for a person's inability to function post accident, navigating through the medical minutiae and advocating effectively for the injured party becomes the task of the personal injury lawyer.
Motor vehicle accident law is a very specialized area of the law and it is important to consult legal practitioners who have the necessary expertise to analyze the medical evidence and legal issues in order to ascertain the viability of your claim.
President, Share Lawyers, Lawyers
The recent Ontario Superior Court decision in Campos v. Sun Life, 2009 CanLII 43186 raises once again the complex issue of whether disputes regarding long term disability benefits belong in the Courts or before an Arbitrator. The case involves a proposed class action for nurse members of the Ontario Nurses' Association, and whether or not retirement benefits under the Canada Pension Plan can be deducted under the long-term disability plan that applied to ONA members entitled to lifetime LTD benefits (a very rare commodity in today's group benefit landscape).
The case invokes the age-old Brown & Beatty analysis which has led to extensive litigation in this area because the analysis must be applied on a case-by-case basis. In other words, the specific terms of the applicable collective bargaining agreement, as well as the disability plan must be reviewed carefully to come to the appropriate conclusion on the appropriate jurisdiction for a particular case.
In Campos, Justice Lax decided that the subject CBA and insurance plan met branch 4 of the Brown & Beatty approach, namely that the insurance policy was incorporated into the collective agreement, therefore making the claim(s) arbitrable. She therefore dismissed the claims of the plaintiff in this summary judgment motion.
An appeal seems likely as it seems that the case turned on Justice Lax's interpretation of Article 12.07 from the CBA. Article 12.07 of the subject CBA states:
Any dispute which may arise concerning a nurse's entitlement to short-term or long-term benefits under HOODIP may (emphasis added) be subject to grievance and arbitration under the provisions of the agreement.
It appears that the word "may" noted above has been interpreted to mean "shall" and has been invoked by the Court to slot this LTD plan into the arbitrable category. There is no discussion as to why the negotiators of the CBA included the word "may" instead of "shall" and it is respectfully submitted that nurse members of the ONA appear to have a choice between pursuing arbitration or proceeding by way of civil action.
Perhaps the Ontario Court of Appeal will have more to say on this subject, should this case proceed to appeal. For now, we are left to further puzzle over the appropriate analysis to apply to unionized group benefit disputes.