Own Occupation, Any Occupation, The Test For Disability
PASSING THE “TEST”: ESTABLISHING “TOTAL DISABILITY” IN LTD CLAIMS
Claims for long-term disability (“LTD”) benefits are very much dependent upon the relevant LTD policy of insurance. While each case is decided on its particular facts, these facts are considered within the framework of the particular “test” of disability that exists within the disability policy. Accordingly, it is the definition of disability with which Plaintiff’s counsel must contend in advancing the rights of disabled clients.
Disability insurance policies usually categorize “disability” into two classes, requiring a claimant to satisfy the definition of disability in order to be entitled to 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. Every policy will, of course, employ a slightly different definition of total disability within the ‘own occupation’ period. Yet, regardless of how clear the policy terms are in defining disability, there will inevitably be questions as to what, in fact, satisfies the ‘own occupation’ test. The following discussion addresses some of the jurisprudence that focuses on the nuances involved in establishing total disability during the ‘own occupation’ period:
Where a Reasonable Person would Refrain from his Vocational Activities:
Courts have recognized that in order to establish total disability during the ‘own occupation’ period, it is unnecessary to prove that one is “unequivocally helpless”. This is expressed in Norwood on Life Insurance Law in Canada, as follows:
In law, the policy term “total disability” does not mean absolute de facto disability in the sense that the insured has to be absolutely and unequivocally helpless and unable to do any work task. Total disability in the legal sense does not require that the insured be incapable of all work activity, only that the medical condition is such that ordinary and reasonable prudence would dictate that that person is not fit enough to carry out the main duties of a job of occupation. The test is, therefore, subjectively related to the health and background of the disabled person in question. But where the medical picture is accepted, the issue of the insured’s condition in relation to ability to work must be considered in the context of a reasonable person in similar circumstances.1
This notion was first expressed in Paul Revere Life Insurance Co. v. Sucharov
”)2, where the Supreme Court of Canada 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
Similarly, the Court’s comments, in obiter, in Tesky v. Great West Life Assurance Co.
4 indicate that the mere fact of being able to work, when it flies in the face of one’s non-work life, does not refute a claim for “total disability”.5 In this regard, the Court stated:
It seems to me that a person who may be physically able to perform work which brings them up to 60% of their premobid income but who is rendered unable to enjoy a home or personal life, is not necessarily medically able to perform to that level because working to the point of exhaustion and to the detriment of one’s life outside work is not something which, in my view, many doctors would regard as healthful. It would be unhealthful. Medically able to perform, in my view, means able to perform in a way which reasonably leaves one with some ability to enjoy a rounded healthful existence and this includes life outside work. To hold otherwise would entail the extremely unattractive consequence of requiring a person to be an automaton and a slave to their work in order not to be disabled.6
Accordingly, the subjective status of the insured person, in comparison with what a reasonable person would be expected to do in the circumstances, is central to whether the policy definition of ‘own occupation’ will be met.
When an Insured Person can Perform some but not all of his Occupational Duties:
The seminal case addressing the interpretation of the ‘own occupation’ definition, specifically in the context of an insured owner-manager, is that of Sucharov
.7 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 the duties of his position.8 By the same token, in Myshrall v. Commercial Union Assurance Co. of Canada
,9 the Court noted that “total disability does not mean absolute helplessness”;10 in that case, disability benefits were recoverable to a carpenter who could not perform “all the substantial and material acts necessary in his usual occupation” during a period where he was able to supervise renovations in his own home.11
Similarly, in Garavellos v. Mutual of Omaha Insurance Co.
,12 the Court found a restaurant-owner totally disabled from his occupation, despite the fact that he attended at the restaurant each day and remained able to perform the restaurant’s bookkeeping. The Court deemed these duties to be but “a very minor portion of the insured’s total job”.13 As such, even if the ambiguous contract was interpreted as insuring against total loss of time, it was held that the plaintiff was “totally unable to perform the essential duties of his employment” and therefore entitled to disability insurance benefits.14 The Court cited approvingly from a telling quotation of a United States Court that was referred to by Mr. Justice Chevrier in Harding v. Prudential Ins. Co. of America
, which states as follows:
The court declined to construe this provision as meaning that no recovery could be had if the insured was able to carry on any vocation whatsoever, saying: “We are unwilling to adopt such a doctrine, the effect of which would be, practically, to reduce all such contracts to nullities, and to make them the instrument of extracting dues from policy holders without creating any liability on the part of the insurers.15
The British Columbia court in Attridge v. Fidelity & Casualty Co. of New York
16 (“ Attridge
”) considered the application of a policy of accident and sickness insurance that provided for coverage when an insured person was continuously disabled and prevented from performing “every duty pertaining to his profession”.17 In that case, an ear, nose and throat physician could no longer “properly carry out many of the procedures normally required of a surgical specialist”, but was able to undertake some “limited consulting work”.18 The Court rejected the plain meaning of the word “every” in considering the vocational duties that the insured was no longer able to carry out. That is, the Court held that the plaintiff did not need to show that he could not perform “each one of all” of his duties” in order to receive benefits, stating that “it was not economically feasible for him carry on his profession in a very limited way” and noting that this would be unfair to the Plaintiff.19
Likewise, in Wilinsky
v. Imperial Life Assurance Co. of Canada
,20 a dentist was deemed to be “unable to perform the whole of the duties of his regular occupation”,21 being the policy definition of total disability, following the Court’s interpretation of the definition as follows:
I do not find any substantial ambiguity in the definition of total disability set out in the subject policy. However, in my view the definition provision was not intended to be, nor should it be, applied absolutely literally. If it were, a dentist who was rendered unable to perform even one very minor duty of the practice of dentistry would qualify for the receipt of total disability benefits. In my view the “whole of the duties” should be interpreted to apply to all important duties which a dentist must perform in order to conduct some reasonable form of dental practice. If, for example, a dentist were unable to carry out one particular duty but could reasonably modify his practice to enable him to carry on some form of dental practice despite the disability, he would not be, in my view, entitled to qualify as totally disabled.22
As in Attridge
, the Court noted that it would not have been “economically viable or otherwise reasonable for the dentist to have persevered with trying to carry on any form of dental practice”.23
v. Standard Life Assurance Co.
,24 the plaintiff was employed by the defendant, Standard Life Assurance Company, as a Regional Sales Manager. The Court found that the plaintiff was unable to perform “each and every function of his regular employment” as defined in the policy.25 The Court concluded that the plaintiff’s job required him to “keep several balls in the air at one time; it is not enough that he might manage one ball in the air, intermittently or sporadically.”26
Where the Cause of an Inability to Work is multi-factorial:
Depending on the facts of each case, a Court may direct its focus on the specific and primary reason for the plaintiff’s cessation of work. Indeed, in order to satisfy the ‘own occupation’ test, an insured’s disability must be the driving force behind him stopping working.
In Cruz v. Canada Life Assurance Co.
,27 a physician argued that, as a result of the suspension of his license to practice medicine, he suffered immediate, reactive depression that rendered him disabled. In considering the case, the Court stated that in order for the physician “to qualify for disability benefits it must be shown that his disability was solely due to sickness and that the disability caused a loss of income”.28 Indeed, disability was defined as inter alia being “solely due to sickness or injury”.29 Accordingly, the Court found him not to be totally disabled since his inability to practice medicine arose from the suspension, rather than from his illness itself.
Where the decision to not work is considered to be a “lifestyle choice”, rather than a medically-necessary decision due to a disabling condition, disability benefits will not be paid. On that basis, the Court denied disability benefits in Kulych v. Great-West Life Assurance Co.
,30 where it heard the case of a plaintiff who, as a result of two prior heart attacks, wanted to avoid a recurrent episode and accordingly ceased working. The Court accepted the insurer’s argument that his decision to leave work was not “borne of medical necessity”.31 Indeed, there was “no evidence to support the allegation that not working would reduce his risk of heart attack”.32The “Any Occupation” Test
Beyond the ‘own occupation’ period, the policy definition of total disability frequently changes to that of ‘any occupation’. That is, in order to satisfy the insurer that one is disabled from working, and is entitled to receive LTD benefits, a claimant must establish that he or she is unable to perform the essential duties of any occupation. This notion is typically qualified in the relevant insurance policy; the inquiry relates to whether the plaintiff can perform any occupation for which he or she would be reasonably suited by means of his or her “training, education and experience”. The ‘any occupation’ test is, in effect, a subjective one.
The onus rests on the plaintiff to establish total disability when benefits are terminated when the definition changes from ‘own occupation’ to ‘any occupation’.33 Once the plaintiff has made out a prima facie case for total disability, the evidentiary burden shifts to the Defendant to prove that there is a specific occupation that the Plaintiff is capable of substantially performing.34
Consideration of the Specific Characteristics of the Insured:
The fact-specific qualities of the plaintiff are very much relevant to an assessment of whether she can perform any occupation, pursuant to the relevant terms of the policy. While all insurance policies are drafted slightly differently, they generally all require a scrutiny of the Plaintiff’s background in determining her entitlement to disability benefits during the ‘any occupation’ period.
In Mercuri v. Imperial Life Assurance Co. of Canada
,35 the insurer accepted that a plaintiff was unable to perform the duties of his own occupation as a barber and salon manager arising from various disabling conditions. The insurer did not, however, agree that the 47 year old plaintiff was precluded from engaging in “any gainful occupation for which he is qualified or may reasonably become qualified by reason of his training, education or experience”, according to the relevant insurance policy.36 The plaintiff had only a grade 5 education, scored low on aptitude testing, had no formal training, but had a lifetime of work experience as a barber. Given these facts, the Court held that it was unreasonable to expect him to engage in any gainful occupation pursuant to the relevant insurance policy. He was held to be totally disabled.
In Nantsios v. Canada Life Assurance Co.
,37 the specific characteristics of an insured were relevant to the Court’s finding that a restaurateur was totally disabled from working in any occupation; the insured had limited proficiency in English, a grade 10 education and no experience or training in any occupations other than the restaurant business. Elaborating on the ‘any occupation’ test for total disability, the Court stated that “the test is not whether a job is within the insured’s capability, rather, the test if whether there is a full time job for which the insured is reasonably fitted by what he has done before.”38 The Court further stated:
The test is a subjective one, and must take into account the characteristics of the insured plaintiff, including his education or lack thereof, his advanced age, his limited work experience, and his medical condition.39
In Hayston v. Wawanesa Mutual Insurance Co. of Canada
,40 the plaintiff was involved in a motor vehicle accident which caused resulted in a traumatic brain injury. It was found that the cognitive defects caused by the injury did not seriously impede the plaintiff from functioning at his own level, in familiar circumstances, and on his own terms.41 However, given that the plaintiff was 61 at the time of the accident and the fact that he was no longer able to work as a skilled technician in orthotics or in fine art photography, which were the only occupations he worked in for 20 years, the Court concluded that the plaintiff’s cognitive deficits prevented him from engaging in any occupation or employment for which he was suited by education, training, or experience.42
In Burtch v. Aviva Insurance Co. of Canada
,43 the Ontario Court of Appeal overturned the trial judge’s decision that the plaintiff was totally disabled as a result of a motor vehicle accident. The plaintiff was 29 years old and was employed as a general labourer. It was held that the trial judge applied the wrong test when he found that the plaintiff was entitled to benefits because he “was not qualified either at the assessmet or by trial, and might never qualify”, for long haul trucking.44 The Court stated:
The proper test, which the trial judge recognized earlier in his reasons, is whether, “as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.” It is not necessary for the insured person to be formally qualified and able to begin work immediately in order for a particular employment to be considered a reasonably suitable alternative. A job for which the insured is not already qualified may be a suitable alternative if substantial upgrading or retraining is not required.45
The Court concluded that based on the findings of the trial judge, long haul trucking was a suitable alternative for the plaintiff, even though he was not formally qualified at the time of assessment and at trial.46
Consideration of the Occupation(s) in which an Insured may Work:
Reviewing the characteristics of the insured must be done in parallel with a scrutiny of the proposed alternative occupation that an insured may be able to perform. Thus, a comparison of the prospective vocation (including its nature, remuneration and status), vis-à-vis the insured’s pre-disability occupation is frequently undertaken.
In Bacon v. Saskatchewan
,47 the plaintiff was deemed to be totally disabled during the ‘any occupation’ period; the Court commented that in order to satisfy the policy definition that one is unable to work at any reasonable occupation (being a “gainful activity for which the employee is, or may reasonably become, fitted by reason of education, training or experience…”48) it is necessary to meet various conditions:
In summary, the plaintiff will be considered under the plan to be totally disabled if she is unable to substantially perform any occupation that is:
(a) neither consequential or trivial; and
(b) similar in nature and remuneration to her former occupation; or
(c) similar in remuneration to her former occupation and of such a nature that she can become capable of performing it substantially within a reasonable time and with a reasonable effort and expense.
The determination of what is “similar in nature” and what is a “reasonable time, effort, and expense”, is assessed from a consideration of the previous education, training and experience of the plaintiff and her previous occupation.49
Where there has been a Return to Work, with Limitations:
On its face, it might appear that a plaintiff who returns to work in either his own or another occupation is not, by definition, totally disabled and not, therefore, entitled to disability benefits. Yet, a closer examination of the case may result in a conclusion to the contrary. That is, a plaintiff’s return to work, albeit on an unreasonable or limited basis, will not necessarily be terminal to his disability claim. This possibility is reflected in the following cases:
In Foden v. Co-Operative Insurance Assn.,50 (“ Foden”) the plaintiff returned to her job as a secretary following a 14 month absence after a motor vehicle accident. Her return to work was driven by her desire “to prove that she was not disabled” as well as by her financial need, despite the fact that her injuries persisted and she did not feel up to the job.51 Furthermore, her employer found her to be unable to properly perform her job tasks. The Court found that the plaintiff was totally disabled and therefore entitled to no-fault automobile insurance benefits. The Court’s treatment of the relevant facts may be summarized as follows:
The mere fact that Mrs. Foden returned to work and kept on working for six months does not, in my opinion, ipso facto disentitle her. Nor would a dismissal from her position by her employer – if one had occurred – have proven that she was incapacitated. A return to work and a dismissal from work are nothing more than facts to be taken into consideration in relation to the underlying question – was she disabled? That question is not answered by the employer’s acceptance or rejection of an employee. That question is for the Court.
No one, in my opinion, should be discouraged from attempting to take up their former work, or any work, out of fear that the attempt might be held against him. Far from necessarily proving that an insured has the capacity to perform his task it may, as in my opinion it does here, prove the reverse. There is no better evidence of incapacity to perform a task than the failure of an honest and sustained attempt to do it.52
In another automobile insurance case, Cohoe v. Safeco Insurance Co. of America
,53 (“ Cohoe
”) a plaintiff was deemed disabled from performing her own or any occupation and thus entitled to benefits. She attempted two periods of return to work as she was “desperate to return to work”.54 She persevered through pain, but was “not really coping”.55 The Court held that though a claimant held an obligation to work through a “reasonable level of discomfort”, “to expect the plaintiff to work with the level of pain and stress suffered by her during her return to work ... is unreasonable”.56 The Court also noted that “no reasonable employer would permit her to work with her symptoms, and no reasonable insurer should expect it.”57
In the case of Brasseur v. Anglo Canada General Insurance Co.
,58 an automobile insurer refused to continue payments to the plaintiff following the 104 week period after the motor vehicle accident. The plaintiff, who had worked as a janitor before the motor vehicle accident, had returned to work as a caregiver/nursing assistant at a nursing home (albeit while experiencing significant physical pain in the performance of her duties), after her long-term disability benefits were threatened to be terminated by her group policy provider. The insurer’s motion for summary judgment was dismissed. The Court held that the plaintiff’s return to work was not “an absolute bar to her recovery”, but was a “significant fact to consider in determining the issue”;59 a real issue therefore existed for trial.
In Nicholas v. Metropolitan Life Insurance Co. of Canada
,60 the Court found a plaintiff totally disabled pursuant to the ‘any occupation’ test, despite the fact that this former medical technologist had attempted to operate, and did establish, a Bed and Breakfast in her home, though she found running this business to be debilitating.61 She had also attempted a home-based clothing business, but did not have the energy to pursue this business.62 The Court stated that the plaintiff should not “be penalized for making every effort to work, especially when her efforts were unsuccessful”.63
In Crooks v. Wawanesa Mutual Insurance Co
,.64 the plaintiff returned to her job as an x-ray technician several times, but stopped working due to pain. Relying on Foden and Cohoe, the Court concluded that notwithstanding the fact that the plaintiff returned to work on several occasions, she suffered a substantial inability to perform the essential duties of her employment.65 The Court opined that it would be wrong for the insurance company to take advantage of the generosity of companies such as the plaintiff’s employer who allowed the plaintiff to return to work even though she was not able to carry out the full duties of her job.66
In Inglis v. Nova Scotia Public Service Long Term Disability Plan Trust Fund
67 the Plaintiff became disabled due to diabetes from his job as a plumber for the Nova Scotia Department of Transportation. He later developed additional mental and physical health issues. The plaintiff sought to return to work at his own occupation on a trial basis, and submitted reports from his doctors to prove his fitness to return to work. The defendant terminated benefits on the basis that evidence supported he was medically able to return to work. The Court found that as a matter of “real world” employability, the plaintiff was totally disabled under the policy definition.68
In other cases, as well, Courts have acknowledged that a return to work will not necessarily undermine a plaintiff’s claim that he is totally disabled, pursuant to the wording of the relevant insurance policy.69Job v. Occupation:
As may be gathered from the above summary, when considering whether an insured satisfies the ‘own occupation’ or ‘any occupation’ tests that are contained within most disability insurance policies, it is frequently not the insured’s specific pre-disability job that is relevant to an assessment of his disability-related vocational limitations, but it is rather his pre-disability occupation that is of concern. That is, “it is the class of occupation, not the specific employment of the insured that is relevant”.70 Of course, especially insofar as the ‘own occupation’ test is concerned, the wording of the policy itself will often provide further indication as to whether it is an insured’s “job”, “occupation”, “profession”, or “employment duties” that can no longer be performed in order to establish total disability.
Similarly, where an insured returns to work at a new job in which she earns less than was the case prior to the onset of her disability, “it is the new occupation and not the specific job obtained by the plaintiff” that will be considered by the Court in determining whether she is disabled from working in any occupation.71 This principle was underscored in Thevenot v. Manufacturers Life Insurance Co.72 In that case, the Court held that the plaintiff was not totally disabled pursuant to the ‘any occupation’ test of disability because inter alia she had returned to work, albeit at a lower pay; the Court held that it is “not the particular salary earned by the plaintiff but rather the range of salary for that type of work that should be considered”.73 The evidence established that the plaintiff could have earned more in her new occupation than was actually the case, which was relevant to determining whether her new occupation was “reasonably comparable” to her prior occupation.74A Note on Credibility:
A close reading of the above-cited cases indicates that the Court’s perception of the plaintiff’s credibility is often key to a determination of whether the test for disability has been met, particularly where the illness for which the plaintiff suffers is an “invisible” condition, such as chronic pain, chronic fatigue syndrome or a mental illness.
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. Manitoba
76 (“McCallum”), 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, “much of course depends on an assessment of the plaintiff’s credibility”.77 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.78
, the Court acknowledged the “extensive period of treatment, including the various medications and physiotherapy” that the Plaintiff had “put herself through”.79 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”.80 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.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 one’s “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 v. Sun Life Assurance Co. of Canada
82, where the Court approved of the Defendant insurer’s decision to terminate LTD benefits at the policy “change of definition of disability” date, the Plaintiff adduced evidence of her housekeeping limitations, but testified that she “never has good days, experiencing only days that are bad and worse”.83
In Kay v. Blue Cross Life Insurance Co. of Canada
,84 the Appellate Court upheld the trial judge’s decision that the Plaintiff was “totally disabled” pursuant to a group insurance policy. In so doing, the Appellate Court considered the lower court’s summary of the trial evidence, including evidence regarding the Plaintiff’s ability to perform moderate physical activity and housekeeping tasks. The Appellate Court wrote:
Mr. Kay the Plaintiff is not saying that his present condition prevents him from maintaining a somewhat normal life style. The thrust of his evidence was that he suffers considerable pain and that his condition makes it impossible for him to continue his occupation as a long-haul tractor-trailer driver.85
In George v. Great-West Life Assurance Company
,86 the Court preferred the evidence of the Plaintiff’s treating physician (Dr. Teasell), who endorsed a holistic approach in considering the Plaintiff’s disability, over the evidence of the Defence’s medical experts. In arriving at the decision that the Plaintiff was totally disabled, Kennedy, J. stated:
I prefer the analytical approach taken by Dr. Teasell to disability and his conclusions. Disability is multi-factorial in nature and a much broader problem than that acknowledged by the Defence expert Dr. Hall. Not only is disability related to function and impairment of function but there are also physiological, emotional, social and vocational factors that contribute and must be considered when the full effect on a person is to be measured.87
It is the authors’ opinion that contextualizing the Plaintiff’s disabling chronic pain (by acknowledging areas of his continued capabilities, portraying his non-vocational limitations and introducing evidence about the role of psychological factors in his disability), lends credence to the Plaintiff’s claim for LTD benefits.
Medical Support for “Total Disability”:
Given that much of a disability case will turn on the fact-specific application of the test of total disability, it is incumbent upon plaintiff’s counsel to consider the evidentiary support for a finding of total disability. Clearly, the assistance of the plaintiff’s treating physicians is important, as is the additional support of independent medical assessors. In approaching these physicians on behalf of a plaintiff, counsel should ensure that these physicians are well-informed about (1) the definition of disability under the policy; (2) the plaintiff’s functional limitations in undertaking vocational tasks; (3) the plaintiff’s education, training and vocational experience; and (4) the plaintiff’s pre-disability occupation, including occupational requirements and demands. It is only with a view to these factors that a treating or assessing physician can provide a well-informed, helpful written opinion that addresses more than just the plaintiff’s physical and medical status; this will inevitably inure to the benefit of the plaintiff.
Undoubtedly, the issue of proving a plaintiff’s disability will inevitably come down to the definition of disability within the relevant disability insurance policy and the extent to which the facts support or refute the impugned “test” of disability. By applying some of the principles that emanate from the above jurisprudence, contextualizing the vocational disability, underscoring the plaintiff’s credibility and obtaining the necessary medical support, plaintiff’s counsel will go far towards establishing ‘total disability’ to the satisfaction of the insurer and Courts alike.
1 Norwood on Life Insurance in Canada, third edition by David Norwood & John P. Weir. Carswell. 2002 at 471.
2 Paul Revere Life Insurance Co. v. Sucharov (1983) 5 D.L.R. (4th) 199 (S.C.C.)Sucharov.
3 Ibid at para. 10.
4 Tesky v. Great West Life Assurance Co. (2001), 37 C.C.L.I. (3d) 53 (Alta. Ct.Q.B) Tesky.
5 See also the discussion, “Contextualizing the Disability”, below.
6 Tesky, supra note 4 at para. 98.
7 Sucharov, supra note 2.
8 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).
9 Myshrall v. Commercial Union Assurance Co. of Canada, (1986), 17 C.C.L.I. 76 (B.C.S.C).
10 Ibid at para. 9.
11 Ibid at para. 9.
12 Garavellos v. Mutual of Omaha Insurance Co. (1976) 73 D.L.R. (3d) 699 (Ont.Cty.Ct).
13 Ibid at para. 27.
15 at para. 24.
16 Attridge v. Fidelity & Casualty Co. of New York 1972 3 W.W.R. 120 (B.C.S.C.)
17 Ibid at para. 17.
18 Ibid at para. 12.
19 Ibid at para 20, 21.
20 Wilinsky v. Imperial Life Assurance Co. of Canada, 1993 I.L.R. 1-2903 (Ont. Gen. Div.).
21 Ibid at para. 16.
22 Ibid at para. 44.
23 Ibid at para. 46.
24 Liesch v. Standard Life Assurance Co. 2003 CarswellBC 2842, 2003 BCSC 1749.
25 Ibid at para 62.
27 Cruz v. Canada Life Assurance Co. (1990), 89 Sask. R. 32.
28 Ibid at para. 8.
29 Ibid at para. 5.
30 Kulych v. Great-West Life Assurance Co. (2000), 20 C.C.L.I. (3d) 117 (Y.T.S.C.).
31 Ibid at para 45.
32 Ibid at para 45.
33 Bain v. Great-West Life Assurance Co. 2012 CarswellBC 2844, 2012 BCSC 1335 at para 50 Bain.
34 Rutherford v. Crown Life Insurance Co. (1996), 1997 1 W.W.R. 69 (Alta. Q.B.) at para 32 as cited in Bain, supra note 30 at para 51.
35 Mercuri v. Imperial Life Assurance Co. of Canada, (1990), 107 N.B.R. (2d) 320 (N.B.C.Q.B).
36 Ibid at para. 1.
37 Nantsios v. Canada Life Assurance Co. (1996), 21 O.T.C. 256 (Ont. Ct.J (Gen. Div.)).
38 Ibid at para. 47.
39 Ibid at para. 48.
40 Hayston v. Wawanesa Mutual Insurance Co. of Canada 2012 CarswellNB, 2011 NBQB 381.
41 Ibid at para 95.
42 Ibid at paras 96, 99.
43 Burtch v. Aviva Insurance Co. of Canada, 2009 CarswellOnt 3371, 2009 ONCA 479.
44 Ibid at para 23.
45 Ibid at para 24.
46 Ibid at para 30.
47 Bacon v. Saskatchewan (1990), 48 C.C.L.I. 166 (Sask. Ct. Q.B.)Bacon.
48 Ibid at para. 5.
49 Ibid at para. 47.
50 Foden v. Co-Operative Insurance Assn, (1978), 88 D.L.R. (3d) 750 (Ont. H.C.J.).
51 Ibid at para 8.
52 Ibid at para 47-48.
53 Cohoe v. Safeco Insurance Co. of America, 1993 I.L.R. 1-2951 (Ont. Gen. Div.)
54 Ibid at para 24.
55 Ibid at para. 25.
56 Ibid at para. 30.
57 Ibid at para 30.
58 Brasseur v. Anglo Canada General Insurance Co. 1995 I.L.R. 1-3136 (Ont. Gen. Div.).
59 Ibid at para. 27.
60 Nicholas v. Metropolitan Life Insurance Co. of Canada, (2003), 1 C.C.L.I. (4th) 239 (B.C.S.C).
61 Ibid at para. 25.
62 Ibid at para 26.
63 Ibid at para. 40.
64 Crooks v. Wawenesa Mutual Insurance Co., 1996 CarswellOnt 2705, 30 O.R. (3d) 244, 23 M.V.R. (3d) 120, 11 O.T.C. 254.
65 Ibid at para 30.
66 Ibid at para 31.
67 Inglis v. Nova Scotia Public Service Long Term Disability Plan Trust Fund (Trustee of), 2011 CarswellNS, 2011 NSSC 36.
68 Ibid at para 96.
69 Tesky, supra note 4; Campanella v. Great American Insurance Co., 1977 I.L.R. 1-876 (Ont. Cty Ct.); Van Allen v. London Life Insurance Co., 2000 I.L.R. I-3749 (Ont. Sup. Ct. J.).
70 Bacon, supra note 47 at para. 40.
71 Thevenot v. Manufacturers Life Insurance Co. (2006) 35 C.C.L.I. (4th) 307 (Man. Ct. Q.B.)
73 Ibid at para. 50.
74 Ibid at para. 51.
75 Part of the following section is excerpted from the paper, David Share & Janice E. Grevler, “Establishing “Total Disability” in LTD Claims of Chronic Pain: The Role of the Plaintiff’s Credibility” (Toronto, The Short Course on Fibromyalgia and Chronic Pain Claims (Osgoode Professional Development, 2011).
76 McCallum v. Manitoba (2006), 38 C.C.L.I. (4th) 55 (Man. Ct. Q.B).
77 Ibid at para. 37.
78 Ibid at para. 28.
79 at para. 30.
80 Ibid at para. 30.
81 The following section has been reproduced from the authors’ article, “Establishing ‘Total Disability’ in LTD Claims of Chronic Pain: The Role of the Plaintiff’s Credibility”, supra note 75 at 12-14.
82 Chaplin v. Sun Life Assurance Co. of Canada (2001), 27 C.C.L.I. (3d) 70 (B.C.S.C.).
83 Ibid at para. 44.
84 Kay v. Blue Cross Life Insurance Co. of Canada (1990), 75 D.L.R. (4th) 571 (N.B.C.A.)
85 Ibid at para. 8.
86 George v. Great-West Life Assurance Company (1993), I.L.R. 1-2957 (Ont. Gen. Div.)
87 Ibid at para. 68.