There's no doubt that internet-based social networking has shrunk the world in which we live, and has allowed us to stay connected with others, near and far. These social utilities provide a plethora of otherwise-unavailable information to keep our "friends" (real or web-based) informed of our whereabouts, our activities and, even, our daily status.
Yet the benefits of staying "connected" can have drawbacks when the information attainable on the world-wide web is used for more than social networking and is, instead, utilized for the purposes of defending a personal injury or insurance lawsuit.
Those who have profiles on Facebook, MySpace, Twitter or other social networks, and who are involved in litigation, should be forewarned that insurance companies too have begun to employ the internet for their own benefit. We have witnessed this phenomenon over the past many months. On the basis of information obtained on social networking utilities, we have seen defence counsel argue that various Plaintiffs in personal injury or disability actions are not as disabled or injured as they have claimed. What may seem to be a harmless comment to update one's "status" on Twitter or Facebook, or to communicate with a friend on his or her Facebook wall, may ultimately be used against the author where he or she is involved in litigation. While investigations of the Plaintiff (including surveillance) have long-since been used by Defence counsel and insurance companies alike, these tactics are now incorporating searches on various social networks to look for clues about the Plaintiff's day-to-day life. At its worst, any such "clues" may be taken out of context by a Defendant who seeks to portray a seemingly harmless comment or photograph in an unfavourable light to the detriment of the Plaintiff's claim.
To eliminate or minimize the risks that a Plaintiff will encounter in the course of litigation, he or she should keep in mind the following tips related to social networking:
So, in short, what can you take from all of this? Be cognizant of the information you are sharing with anyone on-line, even where it appears that you have control over the reader. Think before you speak on social networks. Only say or reveal information that you are amenable to sharing in the course of your lawsuit. And, definitely, speak to your lawyer if you have any question about how your participation on social networking utilities can impact on your case.
]]>By David Share L.L.B.
President, David Share Associates, Lawyers
Over the past several years a large number of Critical Illness Insurance policies have been sold to Canadians either through private policies sold directly to them, or through group policies provided through employers or associations. These policies are designed to pay a one-time lump sum benefit to an individual suffering from an illness set out within the policy. The great misconception that members of the public have regarding these policies is that the benefit is paid out on the simple confirmation of the diagnosis of one of the listed illnesses.While payment may frequently be made without a significant fight with the insurer, rejection of such claims appears to be on the rise. Claim denials are based on a number of potential factors, but we are seeing denials based on two principal areas: 1) The illness diagnosed does not appear to meet the criteria as defined in the policy; and 2) An allegation regarding a negligent or fraudulent misrepresentation regarding the individual's health status at the time the policy was applied for.
If your claim for payment under a Critical Illness policy has been declined, you should contact a lawyer to discuss the possibility of challenging these decisions. Our firm has years of experience in dealing with disputed insurance claims. Familiarity with policy wording and underwriting requirements is crucial if you are to have any chance of success in disputing a claim rejection.
]]>Associate Lawyer, David Share Associates, Lawyers
An expression of contrition and remorse, an apology can go a long way to healing the emotional wounds that fester in the face of wrongdoing. While an apology cannot undo harm that has been caused, it is a way of showing respect and it is an acknowledgement that another individual has emotions that deserve consideration. Children are taught from a very young age to apologize for wrongdoing and to acknowledge the effects of their negative actions on others.
Unfortunately, the proliferation of litigation in recent times has resulted in an adult society that has shunned the simple apology in fear that it will result in an admission of liability or recrimination. Individuals and corporations are often advised by legal counsel to avoid issuing an apology in cases of alleged wrongdoing.
Doctors and Hospitals for instance, are often cautioned against apologizing for medical errors in order to avoid litigation. They will go to the extent of avoiding all communication with patients in regard to a medical error in order to avoid the possibility that anything said in explanation of what occurred could surface in a law suit.
Ironically, the failure to apologize is sometimes what spurs litigation. Some victims of medical errors commence litigation to seek the answers that they have not received because the doctors and hospitals have been instructed not to communicate with them.
Other litigants are motivated by a desire that there is recognition of the wrongdoing or to ensure that the mistake does not reoccur. It is highly probable that many of these types of litigants may not have commenced litigation had they received an apology.
South Africa embraced the concept of "apology" with the adoption of the Truth and Reconciliation Commission in the 1990's. The Commission was created shortly after the abolition of Apartheid and conducted hearings in which victims of violence and human rights abuses could come forward and tell their stories. Perpetrators of the violence and human rights abuses were also encouraged to come forward, admit to their wrongdoings and offer apologies for their actions.
The Commission was vested with jurisdiction to grant amnesty to perpetrators if the crimes committed were politically motivated, proportionate, and there was full and complete disclosure. Approximately 15% of the perpetrators were granted indemnity from criminal and civil prosecution. In 1998 the Commission presented a report which detailed and condemned the abuses that had been committed.
Although the outcome and efficacy of the Truth and Reconciliation Commission has been debated by many, the fact that Democracy was attained in South Africa post Apartheid without civil war is likely in part testimony to the value of acknowledging wrongdoing and rendering an apology.
After an outbreak of Listeriosis the food-borne illness, caused by the bacterium Listeria monocytogenes, Maple Leaf Foods conducted a very public campaign in Canada. The company CEO held press conferences, ran advertisements on television and in newspapers and posted an apology on the company web site. Instead of being condemned for opening itself to potential lawsuits, the company has been lauded for its effective communication with the public.
On April 15, 2009 a bill (The Apology Act) was introduced in the Ontario Legislature that provides that an apology made would not be admissible in a civil proceeding and would not constitute an admission of liability.
It is not uncommon in our practice to encounter clients who are extremely distressed by the fact that the person or company who caused their injury has never apologized to them or acknowledged their wrongdoing. They will express the fact that they are unable to heal emotionally because of the anger they feel towards those that have caused their injuries. In advocating for our clients, we endeavour to imbue litigation with the human element and attempt to persuade those that we are litigating against that they are dealing with individuals whose emotions are deserving of consideration and respect.
If this legislation is passed, it will be a positive step in recognizing that the victims of wrongdoing are not motivated solely by compensation but are often motivated by the genuine human need for compassion, understanding and the recognition of wrongdoing when it has occurred.
Most people in Canada, even those who have worked for several decades, are unaware of the full benefits of CPP. Just about everyone knows that there is a retirement pension available once you reach your 60s. But those premiums you complain about every paycheque also support a disability fund.
If you become medically disabled to continue working, you should apply. The test for entitlement in the legislation is considered very tough but many people do qualify. Contrary to some misconceptions, including those held by many doctors, you do not have to be dying or confined to bed.
You do need to apply as soon as possible as CPP will only back-pay a certain time period if you are found to be eligible. The forms are not difficult but there are several including a medical report. You can submit more than one medical form from different specialists or from your family doctor and a specialist. Be sure to keep copies of all papers submitted.
You are supposed to receive an acknowledgement that your application was received. If you do not, or if more than three months has passed since you have had any communication, call to check on the status of your file. A final decision usually can take six months to process.
If you are rejected on the first application, submit a request for reconsideration. The correspondence received from CPP explains the process in detail. You have to send a note asking for the reconsideration, and can add anything you wish. The important information is a "targeted letter" from your doctor(s). This is a note refuting the reason for the refusal by CPP, advising why the decision is wrong from a medical viewpoint.
There is no need to restate the history. And we know that the information may be available within the reports and records already submitted to CPP. However, it is necessary to put the specific details up front to them.
Statistically the further you proceed into the appeals, the higher the percentage of acceptances.
If you are accepted, the benefits are payable to age 65, unless you recover your health. At age 65 years, the benefit will revert to the retirement benefit calculated on the basis of your contributions. Having received CPP disability does not affect the amount.
]]>David Share Associates, Lawyers
One of the most challenging aspects of representing people in their disability disputes is figuring out whether we can help them in the first place. For most people, all they know is that they are supposed to have these benefits that pay them if they are unable to work, and the rest is merely window dressing. All well and good, but the path to finding a remedy when the benefits are denied is anything but simple.
Is your workplace governed by a Collective Bargaining Agreement? Are the benefits paid by an insurer in their capacity as a manager of the benefit plan? When an insurer enters into a contract to manage disability benefits payments for an employer who is financially responsible to pay the benefits? This contract is usually called an "Administrative Services Only" agreement, or A.S.O.
Why is this important? Because, the answers to these questions will determine whether a dispute regarding disability benefits belongs in the courts or must go through the labour relations system.
Disputes that properly arise under a collective bargaining agreement must ultimately be disposed of by way of Arbitration as contemplated by the particular collective bargaining agreement. Where that is the case, the disabled employee will usually have to seek representation through their union, who will provide a lawyer if required.
As there are numerous unions operating in Ontario, with multiple locals and resulting different benefit plans depending on the particular employer, answering these questions can be a daunting task.
In these cases, it is imperative for you to determine the correct path as soon as possible so that you do not harm your chances of successfully pursuing your claim due to the running of time. Consult a lawyer as soon as possible if your benefits have been denied, as time if of the essence and the sooner these questions are raised, the sooner you can determine whether you are the correct path to resolving your dispute.
Lawyer, David Share Associates, Lawyers
There are several investigative tools used by insurers when assessing disability claims, including IME's (Independent Medical Examinations), FCE's (Functional Capacity Evaluations), referrals to medical consultants, home visits and surveillance. The insurer has a contractual right to compel a claimant to undergo an IME, and in most circumstances, a claimant has the obligation to attend an examination.
An FCE may, however, be an entirely different matter. In contrast to an IME, an FCE is not generally contractually required and is not necessarily a "medical examination" as provided for by the policy. A FCE is a collection of tests utilized by insurers to test a claimant's maximal physical effort. The information from the FCE is then used by the insurance company to make inferences with respect to whether or not an individual can work full time on a sustained basis. There may be legitimate grounds upon which to refuse to attend an FCE, and claimants should be vigilant about asserting rights to refuse such testing.
Insurers often use in house medical consultants to contact a claimant's treating physician to discuss the claimant's condition, restrictions and limitations. In essence, the insurer's medical staff seeks to develop evidence from the physician to demonstrate that the claimant is not disabled. Often, the insurer sends a letter to the physician "confirming" the conversation and requesting a signed acknowledgment from the treating physician that he or she agrees with the statements in the letter. The letter, however, may either distort the facts, or cast the claimant in an unfavorable light. A claimant should instruct a treating physician to not respond to such a letter without first reviewing the contents of the letter with them in detail.
Insurers also utilize medical consultants to reviews claims, relying upon a non-examining physician to address functional abilities. This has inherent problems, because it precludes the claimant from receiving an appropriate evaluation of the claim. It is vitally important therefore that claimants ensure that their treating physicians provide well developed, organized office notes and/or narrative reports to support the claim.
Home visits are common techniques employed by insures when assessing disability claims. An insurance company representative, often identified as a rehabilitation consultant, will stop by either unannounced or at a prearranged time to speak to the claimant. This individual will seek to ascertain the claimant's activity level, determine whether the claimant is working on another interest, or to develop other information to be used by the insurer. Caution should always be used when speaking to the insurer or its representative. Such interviews should be done on the claimant's terms, whether recorded with witnesses, or by having a confirmation of interview prepared - all to avoid anyone distorting the information provided.
Surveillance is another technique frequently used in high benefit cases, or where claimants allege disability based upon either subjective type conditions or where the objective support is not indicative of the restrictions or limitations. In high benefit claims, the insurer is willing to invest significant money to terminate or deny a potentially expensive claim. Claimants must be wary not only of their activity levels while on claim, but of any statements made to the insurer about their daily activities. Inconsistencies can be fatal to a claim: the expression "a picture is worth a thousand words" holds very true with regard to surveillance.
]]>By Kirk Sloane B.A.(Hon), LL.B.
Lawyer, David Share Associates, Lawyers
Where an individual suffers from a condition that is not easily diagnosed by objective testing, they often face great difficulty in having the insurance company accept liability for the payment of disability benefits. Some of the more common conditions that face this kind of resistance by the insurance company include claims related to fibromyalgia, chronic fatigue syndrome, depression, back injuries and even cases of rheumatoid arthritis. Even in cases where herniated discs are apparent from an MRI, insurers will often challenge the claim for disability, arguing that there is no impingement upon nerves or that the condition is simply degenerative.
The key to succeeding with claims based upon subjective complaints is in having the treating physician strongly advocate for the claimant, providing well documented clinical findings, restrictions and limitations. Where the treating physician lacks zeal for the claimant, the claim is often doomed to be denied. It is therefore very important that a claimant ensure that they work closely with his or her doctor when advancing such claims.
While some disability policies contain language requiring objective medical evidence in support of a claim, the majority of policies do not contain such provisions. Nonetheless, many insurers inject the requirement into the claim process unilaterally, without consideration for the nature of the claimant's condition or regard for the fact that such a requirement will be impossible for the claimant to satisfy. Symptoms such as fatigue, pain, lack of energy, focus and concentration are difficult to demonstrate objectively. The insurance company's medical personnel will often have the opinion that the claimant's restrictions and limitations are not supported by objective medical evidence.
Nevertheless, Courts have required insurers to take into consideration a claimant's subjective complaints when deciding upon the validity of the claim, if the claimant's credibility is not challenged.
Vice-President, David Share Associates, Lawyers
What does Heath Ledger and Britney Spears have in common? Their life and disability insurance companies delayed payment of legitimate claims worth millions of dollars. Competent specialised lawyers were retained to fight their entitlements.
ReliaStar Life Insurance Company, owned by ING America, refused to pay Heath Ledger's death benefit of $10 million dollars to his 3 year old daughter, Matilda Rose. The 28 year old star of Brokeback Mountain and The Dark Knight is now the winner of the Golden Globe and Oscar posthumously. Ledger was found dead in his New York apartment in January 2008 some seven months after taking out the policy where his daughter Matilda is the beneficiary. The New York medical examiner ruled an accidental prescription drug overdose of painkillers and other medicine: alprazolam, diazepam, doxylamine, hydocodone, oxycodene and temazepam. Despite the ruling, ReliaStar suggested Ledger committed suicide or lied on his insurance application when he said he never used illegal drugs showing bad faith in applying to the policy. ReliaStar refused to pay claiming the policy was voided.
Prior to approving the application, Reliastar didn't ask for Ledger's physicians' records. Post claim the insurance company asked for names of doctors, psychiatrists and all kinds of records. The estate hired a lawyer on behalf of Matilda and sued ReliaStar claiming punitive damages and contending that the insurer acted in bad faith in its refusal to pay the Ledger policy. ReliaStar in January 2009 agreed to a confidential settlement rumoured to be around $10 million. The insurer appears to have attempted to engage in post claims underwriting in order to delay payment to Matilda.
Britney Spears hasn't been as fortunate with her insurance dispute. In 2005, Spears sued eight international insurance companies including Liberty, AXA and QBE to recover $9.8 million in damages for their refusal to pay her for losses she sustained when her European concert tour in 2004 was cancelled because of a knee injury. Spears paid more than $1.3 million in insurance premiums on contingency insurance, a form of accident and illness insurance for celebrities, to cover abandonment, postponement and cancellation of performances for her 2004 Onyx Hotel Tour through the United States, Canada and Europe.
Spears underwent a medical examination for her insurers on February 5, 2004 and Dr. Drazin concluded that she was "in sound health and free from disease" and "in fit condition" for the Tour. Unfortunately for Spears, she failed to note on the questionnaire that five years earlier she had an orthopaedic surgery on her left knee and had fully recovered subsequently performing hundreds of times since the surgery. In March 2004 Spears injured her left knee during a performance and cancelled two shows. Spears was examined the by the insurers doctor and cleared to perform further shows. In April 2004 Spears provided an explanation at the request of the insurers for the omission in the 2004 questionnaire. After April 2004 the insurers extended the policy from August 10, 2004 to August 15, 2004 and accepted premiums despite Spears acknowledging that she made a mistake on the 2004 questionnaire. On June 11, 2004 Spears had surgery for her injury that took place on June 8, 2004 while shooting her music video "Outrageous". Ultimately Spears was diagnosed with a floating cartilage and cancelled her summer tour of 2004. Despite Spears insistence that many of the insurers knew of her pre existing problems because they insured her for the Tour 2000 with disclosure at that time, Spears insurers are dragging their feet in paying this legitimate claim.
Whether you're a celebrity or not, being denied your claim is stressful for you and your family. Insurers delay as a matter of course. Able counsel may reduce the delay and help resolve your life insurance claim and disability insurance claim.
]]>By Janice Grevler B.A., L.L.B.
Associate Lawyer, David Share Associates, Lawyers
Those who have struggled with their insurance companies for months, or even years, in pursuit of disability benefits that had been denied or terminated, will often experience a range of additional "benefits", both financial and non-monetary, when their cases are ultimately settled. Here are a list of some of the types of gains that our clients have told us they have experienced following the settlement of their Disability Claims:
When contemplating the potential settlement of a case, therefore, it is not just the monetary gains that will inevitably flow from this milestone. Rather, there are a host of additional benefits that the individual may experience ... as a new page is turned and the individual moves on to the next chapter of his or her life.
]]>By Shira Bernholtz B.A., LL.B.
Client Services Lawyer, David Share Associates, Lawyers
The obvious answer to this question is that you need a source of income. But what happens when you are medically unable to work and the insurance company refuses to pay you benefits on the long-term disability policy? The long range solution is to retain David Share Associates to fight the insurance company decision and win a settlement payment. There are, however, a number of short-term options, besides accumulating debt or high credit card balances.
First, be sure you have made all possible claims: employment insurance sickness benefits, short-term disability plan payments, Ontario Disability Support Program, Canada Pension Plan for disability, insurance taken on loans (including mortgages) and other debts (especially credit cards) or life insurance premiums coverage.
Timing of the application can be crucial. Obtain all necessary forms immediately so you can take the time needed. Once submitted, follow-up with a call or visit the local office to ensure the file is in process. And always keep copies of the documents and reports submitted.
Secondly, do you have non-core assets that can be sold? An investment property, unworn jewellery, sports equipment you can no longer use? What about a recreational vehicle? Further, can you downsize to reduce or even eliminate some monthly costs?
We realize that these are often painful actions. And they take a toll on your scarce energy. Just keep repeating that being proactive and facing the monetary issues is much less stressful than having to react to an immediate crisis.
There is also the possibility that you may qualify for social assistance payments.
None of these scenes is pleasant nor fun. Try to remember that the financial problems are secondary to the real concern- that you are medically unable to work. The reasons for your lack of funds are beyond your immediate control. There is a resolution at the end of the tunnel- the hardest part can be making it through.
By Leanne Goldstein B.A., LL.B.
Associate Lawyer, David Share Associates, Lawyers
Embarking on the long term disability claims process with your group insurance company can be an arduous and emotionally trying process. Endless requests for medical documentation and updated information can be difficult to deal with when you are trying to cope with physical or psychological impairments.
Even after you have provided all the necessary documentation that the insurance company has requested, they may still deny your claim on the basis that there is insufficient medical information to support your disability. A denial of this nature can be extremely confusing, when a family physician or specialist has provided a letter to the insurer in which a clear diagnosis of one or more medical conditions is indicated.
In some cases however, a diagnosis alone may not be sufficient to determine whether an individual meets the test for disability contained in the applicable insurance policy or plan. Given the idiosyncratic nature of the human body, different individuals may respond differently to the same disease process. The nature and severity of the symptoms of the illness may differ for a multitude of reasons. There may be pre-existing medical issues that predispose an individual to more severe symptoms or psychological issues that exacerbate a medical condition.
So while two people may be diagnosed with the same illness, one may respond well to treatment, the other may not. One may have mild symptoms and be able to function in the workplace, the other may not. It is crucial therefore to ensure that you accurately describe for the physician or specialist who may be preparing your disability claim forms the nature and extent of your symptoms and how they impair your ability to function in the workforce and at home.
In an Attending Physician's Statement (the document that an insurance company usually requires from your physician and/or specialist to commence your application for benefits) and the medical reports that are prepared pursuant to a request for further information from the insurance company, it is important for your physicians and specialists to consider all of your symptoms, physical and psychological, and more importantly, how these symptoms affect your ability to function. Functional ability is an essential component in analysing whether an individual meets the test for disability contained in the applicable insurance policy or plan.
It is, however, important to bear in mind that every disability insurance policy is unique and an assessment of disability must take place in the context of the definition contained within the applicable insurance policy or plan. Most disability insurance policies contain more than one definition of disability that an applicant must meet before they can be entitled to ongoing benefits.
The foregoing does not constitute legal advice. If you have unsuccessfully appealed your claim for disability benefits or your benefits have been terminated at the "change of definition", you may want to consider whether you require legal assistance to further advance your claim.
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 Steven Muller LL.B, J.D, LL.M.,
Vice-President, David Share Associates, Lawyers
Often questions arise at the conclusion of a long term disability action or motor vehicle claim as to how to ensure long term financial security. Asking the right questions from your financial advisor and accountant is very important. For some disabled persons who have concluded a settlement or are granted an award from the court, the Registered Disability Savings Plan (RDSP) is a useful way to grow their settlement and ensure financial security.
The RDSP is a tax-sheltered savings tool that can be used by disabled persons themselves, through their parents or legal guardians. Similar to an RESP, contributions to the RDSP are not tax deductible but attract matching grants in the form of a Canadian Disability Savings Grant(CDSG). The growth of investments within the RDSP is not taxed. The grants and investment gains within the plan are taxed in the hands of the beneficiary when withdrawn.
RDSP are available to ages 59 or younger and who are eligible to receive the Federal disability tax credit. The maximum CDSG grant through
The deadline for contributing to a RDSP account and getting the matching Canadian Disability Savings Grants (CDSG) for 2008 has been extended to March 2, 2009. Two institutions offer RSDP accounts: Royal Bank and Bank of Montreal.
Where you are disabled from a car accident or have an illness like MS or Parkinson's and are in receipt of the disability tax credit through the Federal Government, the RDSP can be used as a way to save up for adaptive technology, home care or future financial security.
NOTE: Before investing in a RDSP or any other investment, proper investment advice should be obtained as to whether it can benefit you in your particular circumstances, as it may not be applicable in all circumstances, and other rules, regulations and conditions may apply.
Associate Lawyer, David Share Associates, Lawyers
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
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.