Recently in Diagnosis Category

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. 

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. 

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This page is an archive of recent entries in the Diagnosis category.

Depression is the previous category.

Disability Claim Denied is the next category.

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