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Background from the Claimant's Perspective

Claimants who submit claims that are based on depression or other mental health conditions, such as Post-Traumatic Stress Disorder or Bi-Polar Disorder, are faced with a daunting situation when faced with symptoms so severe that they are unable to function in any sort of effective way. They have trouble concentrating, focusing, their decision-making skills are impaired and their judgment is skewed. They consult with their physicians and are usually put on anti-depressants and/or medication to help them sleep and sometimes they even get a referral to a psychiatrist. In Ontario, within the Greater Toronto area and certainly outside the GTA, it can take many months to obtain a first appointment to see a psychiatrist. The family doctors are left with the difficult task of trying to help their patients. There are also a bevy of psychotherapists trying to assists these claimants. While psychological services are more readily available because they are outside the OHIP system, most extended health plans have significant limits on yearly expenses that will be covered in this area, making access to psychologists too expensive for many people.

They submit their claims for short-term and then long-term disability. Frequently, their STD claims are grudgingly approved, although not always, and when their claims move over into the LTD arena, they receive extensive requests for additional information, with concerns being voiced by the insurers over the lack of medical diagnosis, or an alleged failure to obtain treatment, not to mention those cases where a pre-existing exclusion can be reviewed, which delays matters even further.

By the time they arrive in the plaintiff lawyer’s office with a claim being denied, cut-off or still pending, their finances are usually in tatters and their ability to cope is on the edge. They are angry, victimized and feel that they have no place to turn. They are told that they may have a case but it will take time. They may have already tried to get social assistance or some other form of government assistance, however, if they own a home or have any real assets they will be expected to dispose of those first, including RRSP’s and savings before they can qualify for any sort of assistance (with the exception of disability benefits under the Canada Pension Plan which are not based on a financial means test).
These claimants pose particular challenges for plaintiff lawyers because while the claimants are not usually incompetent in the legal sense, their social interaction skills may be compromised to the point that day-to-day management of their relationship with other people is greatly diminished.

What they do know is that they feel unable to work in any sort of reasonable capacity. The origin of their symptoms may take root in any number of events, including being part of the sandwich generation i.e., caring for children and aging parents simultaneously, domestic tension, workplace issues regarding a particular difficult superior or co-worker or excessive workloads, not to mention impacts of significant life altering events such as the loss of a loved one. Each claimant is unique and you really cannot reduce this subject to a one-size fits all approach, as they each arrive at this point from different circumstances.
They are mostly hard-working people who never have really considered that they would ever be in such a position. We, who work every day in this area, may consider the need for protection, but none of us truly accepts that we will ever be in the position that these claimants find themselves in. That is human nature.

When one finds one self in the situation and then you find out that the claim won’t be accepted or benefits will be cut-off due to various tests, exclusions and vague references to failure to satisfy the tests and exclusions, most claimants feel betrayed. The betrayal stems from the feeling that disability insurance was either paid for by them, because they have actually paid for it, or because it appears in some way on every pay stub they have ever received as a deduction. If they don’t feel that they’ve paid for it, they feel that the benefits they were provided with by their employer was a significant inducement or perk of their employment that would be there for them in the unlikely event that they would ever need to use it.

Once in litigation, we, as counsel to the claimants, impress upon them that the process does take time, and although a case that resolves within a year is considered to be an efficient time-frame for resolution because it takes at least 2 years, if not closer to 3-4 years to actually get a matter to trial, for a claimant, a one year wait for resolution can be devastating, particularly where they have virtually no support network to get them through that period.