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Establishing “Total Disability” in LTD Claims of Chronic Pain: the Role of the Plaintiff’s Credibility

ESTABLISHING “TOTAL DISABILITY” IN LTD CLAIMS OF CHRONIC PAIN:
THE ROLE OF THE PLAINTIFF’S CREDIBILITY

By: David Share & Janice E. Grevler
November 24, 2011


With chronic pain and fibromyalgia affecting increasing numbers of Canadians each year, there has been improved diagnosis, education, medical recognition and treatment options for those who suffer from these debilitating conditions. Yet, disability insurance claims based on these ailments are often subject to increased scrutiny by disability insurers. Frequently viewing these claims with skepticism, the disability insurer will typically hone in on the primary issue, being the legitimacy of the claimant’s condition and the degree to which it is inherently disabling. In effect, the credibility of the Plaintiff generally becomes the driving force behind the success or loss of disputes over a Plaintiff’s entitlement to disability benefits. While the parties’ arguments may be couched in a consideration of the physician’s opinions, the clinical notes and records, physical examinations, diagnostic imaging, the nature of treatment, surveillance and the conduct and evidence of the Plaintiff, underlying these assessments is, in the authors’ opinion, a scrutiny of an insured’s credibility.

Claims for long-term disability (“LTD”) benefits are, of course, dependent upon the relevant LTD policy of insurance. In particular, it is the “test” of disability, as provided in the policy, which becomes the centre of dispute within chronic pain-related litigation. Needles to say, it is the definition of disability with which Plaintiff’s counsel must contend, and apply, in advancing the rights of their disabled clients.

Disability insurance policies usually categorize “disability” into two classes, requiring a claimant to satisfy the definition of disability in order to be eligible for LTD insurance benefits; these two tests, being the “own occupation” and “any occupation” criteria are addressed below.

The “Own Occupation” Test
Typically, LTD insurance policies provide for a definition of disability that requires claimants to satisfy the insurer that they are unable to perform their own occupations (that which they were engaged when they became unable to work). This definition of disability generally persists for a specified time-limited period, often being two years. The seminal case addressing the interpretation of the “own occupation” definition, specifically in the context of an insured owner-manager, is that of Paul Revere Life Insurance Co. v. Sucharov.1 In that case, the Supreme Court of Canada rejected the interpretation that being able to perform each employment task, individually, amounted to a conclusion that the insured was able to engage in his regular occupation, and was therefore disentitled to disability benefits under the insurance policy. Instead, the Supreme Court adopted a more holistic interpretation and considered whether the insured was unable to perform “substantially all” of his employment duties.2 In considering the matter, the Supreme Court cited the following relevant paragraph from Couch on Insurance (1983), vol. 15:

The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s own occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure: hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease work, he is totally disabled within the meaning of health or accident insurance policies.3


The “Any Occupation” Test
Beyond the “own occupation” period, the definition of total disability generally changes to that of “any occupation”. That is, in order to satisfy the insurer that one is disabled from working, and is entitled to received LTD benefits, a claimant must establish that he or she is unable to perform the essential duties of any occupation. The Plaintiff bears the onus of establishing, on a balance of probabilities, that he or she is disabled. Once a prima facie case of total disability is made out, the onus then shifts to the Defendant to prove that there is a specific occupation that the Plaintiff is capable of performing.4 The “any occupation” test is, in effect, a subjective test. It has generally been applied without regard to whether the individual can perform any possible occupation; rather, the enquiry relates to whether the Plaintiff can perform any occupation for which her or she would be “reasonably suited” by means of his or her “training, education and experience”. While all insurance policies are drafted slightly differently, they generally all require a consideration of the Plaintiff’s background, including education and vocational history, in determining his or her entitlement to disability during the “any occupation” period. Thus, issues such as reasonably comparable remuneration and status, and whether the proposed alternative employment is of a similar nature to the insured’s previous employment, are taken into consideration.5

Establishing “Total Disability” in cases of Chronic Pain:In the unreported decision of Butler v. Blaylock6, subsequently cited in Price v. Kostryba7, Mr. Justice McEarchern commented as follows:
I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery period.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence – which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.


McEarchern, J.’s comments are applicable to the litigation of a contractual claim for LTD benefits, especially where a claim is based on an “invisible” disability, such as chronic pain or fibromyalgia, where there is frequently no objective evidence of an individual’s ailments. Accordingly, these cases will often rise and fall on the evidence that supports or refutes the Plaintiff’s credibility.

The possibility of a diagnosis of fibromyalgia or chronic pain appears not to trouble the Courts in LTD cases; that is, with the assistance of experts and increased medical knowledge, there appears to be at least an understanding and awareness of fibromyalgia and chronic pain as it may exist, as well as an appreciation for the fact that these ailments can certainly result in disability from one’s own or any occupation. Rather, where these cases are tried, the controversy generally lies on the appropriateness of the Plaintiff’s diagnosis and, moreover, on its impact on his working capacity. In Garriock v. Manufacturers Life Insurance Co.8, for example, the central issue of the impact of the Plaintiff’s condition was described by the Ontario Court as follows:
What is abundantly clear from a review of the medical evidence is that the diagnosis of the Applicant’s physical condition is not contested. Manulife, in its own reports and letters accepts that the Applicant suffers from fibromyalgia and that this condition restricts her ability to perform certain physical tasks.

The dispute between the parties is not about diagnosis but about the conclusion to be drawn therefrom and whether fibromyalgia restricts the Applicant from “performing the essential duties of any occupation for which he is qualified or may reasonably be qualified, by training, education or experience.9


In Garriock, the Court held that the Plaintiff was totally disabled, given the consistent support for this conclusion by her doctors, physiotherapist, functional abilities evaluator, and “without credible medical evidence to suggest the contrary”.10

The issue of assessing the extent of pain in the context of a disability insurance policy was articulated by the Court in Chaplin v. Sun Life Assurance Co. of Canada where the Court stated:
Pain alone does not necessarily qualify under the meaning of a total disability in a policy. Regard must be had for the entire definition of total disability and if pain is the disabling condition, it must be caused by sickness or injury. A person may have pain but is not necessarily disabled by it.11


Perception of Credibility:The Court does not always overtly acknowledge a Plaintiff’s credibility in a disability case, even where a Plaintiff’s credibility appears to have some bearing upon the Court’s decision. Credibility is, however, sometimes cited as an important deciding factor for the trial judge in establishing total disability. In McCallum v. Manitoba12 , where the Court considered whether a Plaintiff was disabled from performing any occupation due to fibromyalgia, and thus entitled to receive LTD benefits, Jewers, J. stated, “[m]uch of course depends on an assessment of the plaintiff’s credibility”13. In finding that the Plaintiff had satisfied the onus of establishing that the Defendant breached the relevant insurance plan by failing to pay LTD benefits, Jewers, J. emphasized the Plaintiff’s credibility, writing:
She has testified that her condition is such and her energy is so low that she cannot work at any occupation: at most she can look after herself and perform the tasks of daily living, although on her “bad” days she has difficulty doing even that. She presented in a credible manner and testified in a clear, direct and consistent manner. She did not seem to be overstating or embellishing her symptoms. There was nothing in her testimony or demeanor which would cause me to doubt her essential veracity.14


In McCallum, the Court acknowledged the “extensive period of treatment, including the various medications and physiotherapy” that the Plaintiff had “put herself through”.15 These efforts to mitigate were depicted by the Court to legitimize the Plaintiff’s condition and disability (and hence bolster her credibility), with the Court noting that “it is unlikely that she would have gone through all that if she did not have some genuine belief in the validity of her condition and symptoms”.16 The authors submit that perhaps it was the Plaintiff’s overall credibility that impacted upon the lens by which her treatment was viewed; certainly many claimants who have undergone exhaustive medical and non-pharmacological treatments have nonetheless seen their LTD benefits denied or terminated.
Subjectivity of Pain Symptoms – through a Medical and Legal Lens:
In McCallum, the lack of objective medical findings appeared not to concern the Court, given its assessment that the Plaintiff was credible, as described above. In this regard, Jewers, J. noted:
I do appreciate that for the most part her condition and symptoms are subjective. We must take her at her word. But, as I have said, I can see no reason not to do so and of course the subjective nature of the symptoms does not necessarily make them any the less real.17


In other cases, by contrast, the lack of objective evidence of a claimant’s disability is deemed to be problematic. By way of example, in Plouffe v. Mutual Life Assurance Co. of Canada18, a re-trial was held (after the British Columbia Court of Appeal overturned a trial decision and ordered a new trial19) to address whether an insured was disabled from performing any occupation, given his strain injury, fibromyalgia and chronic myofascial pain syndrome. The Court held that evidence of the insured’s total disability had not been established. The Court’s decision is summarized as follows:
Mr. Plouffe has either not read or has misunderstood the Court of Appeal’s decision in his case. That decision says that he cannot succeed without adducting objective evidence that his disability prevents him from working in, among other jobs, light or sedentary retail sales, or as a call centre agent, parking lot attendant, or customer service clerk. Mr. Plouffe had come to trial again with no evidence of that sort. He has not satisfied the burden of proof upon him, and he cannot win judgment against the insurance company.20


Similarly, in Mathers v. Sun Life Assurance Co. of Canada21 the trial Court noted that the Plaintiff’s symptoms were “out of all proportion to the objective medical evidence which portray a virtual absence of physical findings”.22 The Plaintiff was found not be totally disabled pursuant to a policy of disability insurance. This decision was upheld on appeal, where the Appellate Court stated:
While it is possible that a judge could find such a claim to be proven on the Plaintiff’s own evidence alone, it is clear in my view that the test is not entirely subjective. Sucharov establishes that proof of total disability must be sufficient to satisfy the reasonable man, the traditional objective test. For that reason, acceptance by the trial judge of objective medical evidence of total disability will usually be required.23


The lack of objective medical findings in evaluating individuals with pain is one that has been addressed by treating physicians and medico-legal experts alike. Given the inherently subjective nature of pain, and with pain often stemming from non-verifiable causes, physicians too must grapple with the diagnosis, management and treatment of patients with subjective chronic pain. Yet, even where patients suffer from excruciating symptoms on a daily basis, their physicians may be biased by a number of factors in appreciating the intensity of their pain. This inevitably impacts upon the assessment and management of their pain, as well as the opinions that are offered for the purposes of their LTD claims. That is, the physician’s biases will impact on their core estimation of the patient’s credibility. In a recent medical publication, researchers considered whether the perception of a person’s likeability impacted upon his presumed level of pain24 The study found that the “[p]ain of disliked patients was found to be taken less seriously than pain of liked patients”25. In another study, the authors summarized the literature that demonstrates that observers have a tendency to “underestimate” others’ pain (when studying how the sufferer has characterized it).26 The authors state:
Reviews of this literature suggest that pain underestimation is a robust phenomenon, demonstrable when judges evaluate specific types of evidence, such as recordings of facial expressions, or when they make holistic judgments from vignettes or in situ.27


The researchers concluded that “high levels of experience with evidence of pain leads to a diminution in willingness to judge others to be in pain.”26 They noted:
Although the present findings provide support for the conclusion that exposure to high levels of pain expression diminish willingness to acknowledge pain in others, it is unlikely that simple exposure represents the only such influence. There is an extensive literature, using various models, to indicate that such variables as the nature of medical evidence supporting a claim of pain, personal characteristics of the sufferer, information that activates suspicion, or the nature of prior experience with suffering influence willingness to impute pain to others.29


Clearly then, there are several factors that impact on an assessment of a Plaintiff’s subjective pain, and hence credibility, in a disability claim. Some of these factors were referred to by the Court in Chaplin. In that case, a Plaintiff was determined not to be totally disabled from performing any occupation, pursuant to the terms of the relevant disability insurance policy, despite the Plaintiff’s chronic pain and fatigue. The Court held:
Fibromyalgia is not a disease but is a syndrome: a constellation of symptoms. Fibromyalgia is a chronic musculoskeletal pain disorder, a particular form of chronic pain syndrome. A patient’s self-report of his or her history and symptoms dominates diagnosis. Validation by medical practitioners is often difficult to impossible.

Exaggeration, simulation, or inappropriate reaction of the patient to digital palpation exacerbates the difficulty of a fibromyalgia assessment.
30


In Chaplin, the Plaintiff’s credibility was very much at issue, with the Court noting that the “reliability of the [P]laintiff’s self-reported symptoms and assessment of ability [are] of critical import in this matter.”31 The Court was suspicious of the Plaintiff’s evidence that the most challenging barrier preventing her from returning to work was the necessity for sustained sitting, in the face of evidence about the extent to which employees were able to take breaks from their work stations at the Plaintiff’s workplace. Video surveillance that depicted the Plaintiff grocery shopping and lifting her daughter from a car seat were found to discredit her testimony regarding her physical limitations, despite the fact that Holmes, J. acknowledged that “the nature of this type of evidence does not take into account the aftermath of pain and discomfort an activity may cause” and that “unfair editing” may have been employed to the surveillance video32. The Court held:
I conclude that the [P]laintiff has exaggerated her difficulties on various occasions and that must reflect the necessity for caution in acceptance of her reporting of symptoms, the degree and scope of her pain, disability and her self-assessment of an inability to work.33


Though the Plaintiff had the benefit of a supportive treating family physician, given the credibility issues that existed, the family physician was seen only to be acting as an “advocate” for the Plaintiff, accepting “without reservation the Plaintiff’s self-report of symptoms, their degree, and effect”.34 The Court therefore accepting other medical evidence that was presented, over that of the family physician, stating:
I find [family physician] Dr. Thompson’s opinion coloured by loyalty to his patient and lacking in objectivity.35


In another case, Ditomaso v. Manufacturers Life Insurance Co.36, the Court did not accept the opinions of two treating physicians (a family physician and rheumatologist) that the Plaintiff was unemployable due to fibromyalgia, in the face of the Plaintiff’s questionable testimony. The Court found the Plaintiff’s evidence to be “unreliable”, and “prone to inconsistency and exaggeration”.37 While surveillance was said not to “demonstrate that the plaintiff is capable of employment”, it was nonetheless inconsistent with the Plaintiff’s testimony about his level of disability and his reports to health-care professionals and “therefore casts doubt upon his credibility and the reliability of his self report”.38 The Court was particularly leery of the Plaintiff’s presentation to various physicians, stating:
Fibroymalgia is a condition in which the diagnosis and medical opinion is based substantially upon the patient’s self report. Virtually all of the doctors who have examined or treated Mr. Ditomaso have observed some or all of exaggeration, nonorganic pain behavior, inconsistent or discrepant performance, and sub maximal effort such as to cast significant doubt upon his self report.39


By contrast, the support of a treating family physician was ultimately held to be of benefit to the Plaintiff in supporting his claim for the reinstatement of LTD benefits in Nantsios v. Canada Life Assurance Co40. In fact, in that case, the Court noted that “the evidence of the Plaintiff’s own personal physician should not take a back seat to that of the experts”, and further stated that, “his own doctor is in a better position to render a valid medical opinion”, in comparison with the experts41. Perhaps relevant is the fact that the Court’s reasoning made no reference to any issues of credibility in the Plaintiff’s testimony about his total disability (which arose from a combination of medical problems, including chronic pain), despite surveillance evidence being introduced. Arguably, the lack of prominent credibility issues perhaps made it easy for the Court to accept the family doctor’s opinion. Interestingly, the Court noted that “the fact that benefits were paid for a period of time is a consideration weighing in favour of the Plaintiff”.42

Contextualizing the Disability:
It is noteworthy that in McCallum, as in other cases in which Plaintiffs have been determined to be disabled from working, the Plaintiff acknowledged the extent to which she was able to perform various tasks, and engage in selective non-work-related activities, despite her vocational disabilities. Indeed, an acknowledgement of ones “good days” (in the face of a chronic condition) is important in credibly establishing one’s true level of functioning. Similarly, on behalf of the Plaintiff, evidence should be advanced about the non-vocational activities that a Plaintiff is now disabled from performing. In Chaplin>The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. In other words, case of total disability is made out, the onus then shifts to the Defendant to prove that there is a specific occupation that the Plaintiff is capable of performing.4 The “any occupation” test is, in effect, a subjective test. It has generally been applied without regard to whether the individual can perform any possible occupation; rather, the enquiry relates to whether the Plaintiff can perform any occupation for which her or she would be “reasonably suited” by means of his or her “training, education and experience”. While all insurance policies are drafted slightly differently, they generally all require a consideration of the Plaintiff’s background, including education and vocational history, in determining his or her entitlement to disability during the “any occupation” period. Thus, issues such as reasonably comparable remuneration and status, and whether the proposed alternative employment is of a similar nature to the insured’s previous employment, are taken into consideration.5

Establishing “Total Disability” in cases of Chronic Pain:In the unreported decision of 7, Mr. Justice McEarchern commented as follows:
of a diagnosis of fibromyalgia or chronic pain appears not to trouble the Courts in LTD cases; that is, with the assistance of experts and increased medical knowledge, there appears to be at least an understanding and awareness of fibromyalgia and chronic pain as it may exist, as well as an appreciation for the fact that these ailments can certainly result in disability from one’s own or any occupation. Rather, where these cases are tried, the controversy generally lies on the appropriateness of the Plaintiff’s diagnosis and, moreover, on its impact on his working capacity.
The dispute between the parties is not about diagnosis but about the conclusion to be drawn therefrom and whether fibromyalgia restricts the Applicant from “performing the essential duties of any occupation for which he is qualified or may reasonably be qualified, by training, education or experience.9, the Court held that the Plaintiff was totally disabled, given the consistent support for this conclusion by her doctors, physiotherapist, functional abilities evaluator, and “without credible medical evidence to suggest the contrary”.10

The issue of assessing the extent of pain in the context of a disability insurance policy was articulated by the Court in Chaplin v.

12 , where the Court considered whether a Plaintiff was disabled from performing any occupation due to fibromyalgia, and thus entitled to receive LTD benefits, Jewers, J. stated, “[m]uch of course depends on an assessment of the plaintiff’s credibility”13. In finding that the Plaintiff had satisfied the onus of establishing that the Defendant breached the relevant insurance plan by failing to pay LTD benefits, Jewers, J. emphasized the Plaintiff’s credibility, writing:
The above reasoning appears to support the imposition of a particularly high standard for awarding bad faith damages against insurers who become overly-enthusiastic in investigating LTD claims based on chronic pain. That is, an insurer may get away with troubling conduct by excusing otherwise unjustified investigations on the basis that the Plaintiff’s symptoms are subjective in nature and thus more difficult to substantiate.

Nonetheless, LTD claimants should find optimism in Fidler’s recognition that a Plaintiff may well be compensated for mental suffering that is caused by an insurer’s breach of a disability insurance policy. Though subsequent to Fidler there has been a scarcity of jurisprudence that considers whether “ Fidler damages” for mental distress are justified in the LTD context, there are a few cases that support damage awards for mental distress in LTD cases of chronic pain.55 Of particular note is the case of McQueen v. Echelon General Insurance Company56, the Ontario Court of Appeal, a $25,000.00 award for mental distress was upheld in a Statutory Accident Benefits case. The Court of Appeal quoted with approval from Fidler. The Court noted the following, taken from the trial Judgment as conduct of the insurer deserving of compensatory mental distress damages:
[58]…I find that the Echelon file notes are evidence of an adversarial approach to the Plaintiff ab initio and in behaving in this manner, the Defendant has breached its’ contract of insurance with the Plaintiff.

[59]…Echelon’s adversarial position poisoned the process very early on, notwithstanding that it owed the Plaintiff a duty of good faith throughout. Early on there was a negative predisposition toward the Plaintiff by the Defendant and these “notes” were the clarion call to the file going forward.57


It is the authors’ opinion that in claims relating to chronic pain, Plaintiff’s counsel should, on a case-by-case basis, carefully consider advancing allegations of mental distress in accordance with Fidler. Indeed, as discussed above, the subjects of these claims are sometimes unfairly forced to endure overly-zealous investigations that are driven by the claimant’s “likeability”, or a lack of objective proof of their subjective experience of pain. Alternatively, an insurer’s denial or termination of LTD benefits may result from a rush to judgment without a thorough review and based on various biases against those who suffer from chronic pain. In either event, where the insurer’s conduct results in emotional hardship, advancing a claim for mental suffering is prudent.

Establishing or Attacking the Plaintiff’s Credibility through the Use of Accident-Related IMEs:
Evidence of the Plaintiff’s credibility (or lack thereof) can sometimes be ascertained by a review of Independent Medical Examination (“IME”) assessment reports that are prepared for the purposes of unrelated proceedings. That is, an LTD claimant with ongoing litigation arising from his denied or terminated disability benefits, may have been (or may concurrently still be) involved in a claim for Accident Benefits under the Statutory Accident Benefits Schedule (“SABS”) or in a tort action arising from personal injuries that he sustained (and which may have resulted in the injuries for which he is now claiming LTD). Where IMEs are prepared for the insurer or Defendant in a proceeding extraneous to the LTD action, a question arises as to whether the IME reports are admissible in the trial of an LTD claim, particularly given Rule 53.02 of the Rules of Civil Procedure, which came into effect on January 1, 2010.

In the seminal case of Beasley v. Berrand58, the Ontario Court considered the admissibility of three medical reports in a tort claim arising from a motor vehicle accident (“MVA”). In particular, the impugned medical reports “were authored for the purpose of assisting an insurance company to process an accident benefits claim brought forward by its insured” and were not, therefore, in compliance with Rule53.03.59 Moore, J. held that they were not, therefore, admissible in the tort case, stating:
I see no reason to require a high standard be met by consulting medical experts retained by the parties and a different lower standard from consulting medical experts who just happened to have been retained by a non-party but whose opinions might be read to assist one of the parties at this trial.

I am not to be heard to state that experts retained by accident benefits insurers cannot give opinion evidence in a tort action; rather, I say that such experts should first comply with Rule 53.03. I say “should” for there may be cases where that is not possible and then the court might consider relieving against non compliance to ensure a fair adjudication of the issues upon their merits but this is not one of those cases.60
[…]
The purpose of the three reports is not a purpose within the meaning of Rule 53.03(2.1) and, in any event, in their present form and content, the three reports cannot be read to comply with the requirements enumerated in the Rule and the circumstances here do not support a claim for relief from the requirements of the Rule.61


Since Beasley other Courts have considered Rule 53.03 in determining the admissibility of reports that were prepared outside of the impugned litigation. The decision of Beasley was followed in Jeffrey v. Baker,62 where the Court ordered the Plaintiff to attend a medical examination at the request of the Defendant so as to bring an expert’s report in compliance with Rule 53.03, thereby allowing the expert to testify at trial.

In McNeill v. Filthaut,63 the Court grappled with the same issue as in Beasley. In particular, the Defendant in an MVA action brought a motion for inter alia “[a] declaration that the requirements outlined in Rule 53.03, as they related to expert witnesses, do not apply to individuals retained by non-parties to the litigation”.64 Specifically, the Defendants sought to call as expert witnesses at trial some of the experts retained by the Plaintiff’s SABS insurer. In direct contradiction to the Beasley decision, the Ontario Court held in favour of the Defendants, holding that the requirements outlined in Rule 53.03 do not apply to expert witnesses who are retained by non-parties to the litigation. The Court held:
Respectfully, I disagree with my learned colleague [in the Beasley decision]. In so doing, I am mindful that consistency in the decisions of this court is preferred, and that my decision conflicts with J.P.Moore J.’s decision in Beasley v. Barrand. I cannot find, as he did, that Rule 53.03 can be extended in its applicability to experts engaged by non-parties to litigation, namely, accident benefit assessors. In my reading and interpretation of Rule 53.03, its application is limited to experts engaged by or on behalf of a party. The ultimate purpose of Rule 53.03 is to limit and control the proliferation of experts retained by litigants by imposing on those experts a duty of fairness, objectivity, and non-partisanship to the court, which prevails over any other obligations owed by the expert to a party. The introduction of the new rules about expert witnesses is an effort to eliminate the use of “hired guns” or “opinions for sale” in civil litigation, where the use of which has resulted in potentially biased expert evidence being given at trial.65


The Court in McNeill noted that “[c]ases following the release of the Beasley v. Barrand, supra, have sought to follow, distinguish, expand upon or limits its applicability”.66 The Court cited the following two unreported decisions:
- In Anand v. State Farm67, at issue was whether the factual observations of assessors retained by the SABS insurer were admissibility in a parallel tort proceeding. “Stinson J. held that experts retained by accident benefit insurers could give evidence regarding their factual observations, but could not provide opinion evidence” or conclusions in the tort actions;68
- In Slaught v. Phillips69, a ruling on a voir dire, the Court agreed with the Beasley decision, but distinguished between expert witnesses who provide treatment versus those who are retained exclusively to express an opinion. Turnbull J. held that there were different classifications of experts that come before the court, indicating that the Court ought to be more lenient in excusing non-compliance with Rule 53.03 insofar as the impugned testimony relates to a treating expert.70

As stated by the Court in McNeill, “[t]he existing jurisprudence interpreting Rule 53.03 is in a state of flux and uncertainty”71. Only time will tell how this issue plays out in the Courts. Certainly, the potential inclusion of additional medical and other expert reports (from unrelated proceedings) in the LTD litigation may provide fodder for a Defendant disability insurer seeking to discredit a Plaintiff with chronic pain.

***


Clearly then, Plaintiff’s counsel will be well-served by reinforcing the Plaintiff’s credibility, and minimizing attacks thereto, in advancing her claim for LTD benefits on the basis of chronic pain or fibromyalgia. Indeed, more so than with other illnesses, these “invisible” disabilities elicit a scrutiny of the Plaintiff’s self-reports and presentation to physicians, defence counsel and the Courts, with which Plaintiffs Counsel must be prepared to contend. Plaintiff’s counsel should be cognizant of the potential to advance claims for mental distress in LTD cases. They should also be aware of the recent debate over including extraneous medical reports, which may bolster or undermine a Plaintiff’s credibility, in the LTD litigation.


1 Paul Revere Life Insurance Co. v. Sucharov (1983) 5 D.L.R. (4th) 199 (S.C.C.)[Sucharov]
2 Share, David & Leanne Goldstein, “Treatment Rehabilitation and Retraining: How far does the claimant’s duty to mitigate go?” in The Canadian Institute’s Second Annual Managing and Litigating Depression Disability Claims (Toronto: Canadian Institute, 2004).
3 Supra note 1 at para 10.
4 Rutherford v. Crown Life Insurance Co. (1996), 38 C.C.L.I. (2d) 260 (Alta. Ct. Q.B), aff’d at (1998) 6 C.C.L.I. (3d) 98 (Alta C.A.)(though, vary’g costs decision)
5 Supra note 2.
6 Butler v. Blaylock, decided October 7, 1981, Vancouver No. B781505 (unreported).
7 Price v. Kostryba 70 B.C.L.R. 397 (B.C.S.C.) at para 4.
8 Garriock v. Manufacturers Life Insurance Co. 74 C.C.L.I. (2009), (4th) 135 (Ont. S.C.J.)[Garriock],
9 Ibid at para. 35 & 36.
10 Ibid at para. 40.
11 Chaplin v. Sun Life Assurance Co. of Canada (2001), 27 C.C.L.I. (3d) 70 (B.C.S.C) [Chaplin] at para 20.
12 McCallum v. Manitoba (2006), 38 C.C.L.I. (4th) 55 (Man. Ct. Q.B)[McCallum]
13 Ibid at para. 37.
14 Ibid at para. 28.
15 Ibid at para. 30.
16 Ibid at para. 30.
17 Ibid at para 31.
18 Plouffe v. Mutual Life Assurance Co. of Canada (2005), 31 C.C.L.I. (4th) 287 (B.C.S.C) [Plouffe],
19 Plouffe v. Mutual Life Assurance Co. of Canada, [2003] 3 W.W.R. 633 (B.C.C.A.).
20 Supra note 18 at para. 39.
21 Mathers v. Sun Life Assurance Co. of Canada (1998), 5 C.C.L.I. (3d) 201 (B.C.S.C.)[Mathers]
22 Ibid at para 60.
23 Mathers v. Sun Life Assurance Co. of Canada (1999), 9 C.C.L.I. (3d) 151 (B.C.C.A.) at para. 8 (leave to appeal refused at [1999] S.C.C.A. No. 334 (S.C.C. Mar. 16, 2000).
24 Lies De. Ruddere, et. al., “When you dislike patients, pain is taken less seriously”, 2011, 152, Pain. 2342-2347.
25 Ibid at 2346.
26 Prkachin, Kenneth M. and Elizabeth M. Rocha, “High Levels of Vicarious Exposure Bias Pain Judgments”, (Sept) 2010, Vol 11. No. 9, Journal of Pain, 904-909 at 904.
27 Ibid at 904.
28 Ibid at 907
29 Ibid at 907.
30 Supra note 11 at para. 38-39.
31 Ibid at para. 50.
32 Ibid at para. 52.
33 Ibid at para. 62.
34 Ibid at para. 63.
35 Ibid at para. 68.
36 Ditomaso v. Manufacturers Life Insurance Co. (2002), 6 C.C.L.I. (4th) 252 (B.C.S.C.)
37 Ibid at para 56, 57.
38 Ibid at para. 56.
39 Ibid at para. 54.
40 Nantsios v. Canada Life Assurance Co. (1996), 40 C.C.L.I. (2d) 247 (Ont. Ct. J. (Gen. Div.)
41 Ibid at para. 41.
42 Ibid at para 44.
43 Supra note 11 at para. 44.
44 Kay v. Blue Cross Life Insurance Co. of Canada (1990), 75 D.L.R. (4th) 571 (N.B.C.A.)
45 Ibid at para. 8.
46 George v. Great West-Life Assurance Company (1993), I.L.R. 1-2957 (Ont. Gen. Div.)
47 Ibid at para. 68.
48 Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3 2006 (S.C.C)[Fidler]
49 Ibid at para. 9.br>50 Ibid at para. 9.
51 Ibid at para. 47.
52 Ibid at para. 47.
53 Ibid at para. 71.
54 Ibid at para. 66.
55 See for example, Saunders v. RBC Life Insurance Co. (2007), 58 C.C.E.L. (3d) 83 (Newfdl. & L.S.C); Lumsden v. Manitoba (2009) 448 W.A.C. 130 (Man. C.A.); Supra note 12; Greenside v. Alliance Pacific Life Insurance Co. 2009 CarswellOnt 6857 (Ont. S.C.J.)
56 McQueen v. Echelon General Insurance Company, 2011 ONCA 649 (O.C.A.)
57 Supra, note 56 at page 16, pars. 58-59.
58 Beasley v. Berrand (2010), 101 O.R. (3d) 452 (Ont. Sup. Ct. J.)[Beasley] Leave to appeal dismissed (2010), 94 C.P.C. (6th) 347 (Ont. S.C.J.).
59 Ibid at para. 71.
60 Ibid at para. 69.
61 Ibid at para. 72.
62 Jeffrey v. Baker, [2010] O.J. No. 4415 (Ont. S.C.J.)
63 McNeill v. Filthaut, [2011] I.L.R. I-5138 (Ont. S.C.J.)[McNeill]
64 Ibid at para. 1.
65 Ibid at para. 44.
66 Ibid at para. 45.
67 Anand v. State Farm (23 April 2010, unreported) Court File No. 04-CV-266354CM1
68 Supra note 51 at para. 45.
69 Slaught v. Phillips (18 May 2010; unreported) Court File No. 109/07
70 Supra note 51 at para. 48.
71 Ibid at para. at para 52.