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Long-Term Disability Litigation
Because there's a lot at stake. 

Suing an insurance company may seem daunting but we do it all the time. 

We got this. 

 

Not daunting, at all.  Our clients feel relief when they decide to hand their fight over to us.  Some even say that it was the best decision they made.  You focus on you and we'll focus on your case. 

 

Litigating hard-to-prove Long Term Disability claims, like those for mental illness, chronic pain, immunological, and neurological conditions, is what we do best.   In fact, it's all we do.

Holding insurance companies accountable for the impact their decisions have on our clients' lives is what drives us every single day.  

We know that no one chooses to be unwell and without an income.  invisible disabilities are as real as any other.  We'll prove it to the insurance company, while you focus on you and your health and recovery. 

When is litigation necessary? There are many factors to consider.

 

The answer to if and when litigation is necessary is not the same for every case.  It is important to contact us to discuss the specifics of your case, to determine the best way forward for you.  Sometimes litigation is one of many "good" options and other times, it is the only option.

 

In determining if litigation is the way forward, we consider many factors.  We've compiled a list of some of these considerations for you to ask yourself. If you answer "yes" to one of more of the questions below, litigation may be an option.  In fact, it may be your only option.

  • Has the insurance company denied your claim or stopped paying your monthly benefits for any reason and you are not well enough to return to work?

  • Have you already appealed the decision and been unsuccessful in changing their decision?

  • Does the decision letter contain information that has been mischaracterized to support the denial of your claim?

  • Have you and your doctors provided the insurance company with all of the medical information relevant to your claim?

  • Is your doctor and other treatment providers equally perplexed by how your claim could have been denied based on their knowledge and ongoing assessments of you?

  • Are you concerned that your claim was denied because your doctors are not supporting your claim?

  • Are you struggling to schedule timely appointments with specialists to confirm your diagnosis and recommend treatment and was a lack of diagnosis and/or a lack of "appropriate treatment" a basis for denying your claim?

  • Have you been forced to return to work before you are ready and when you stopped working again, did the insurance company fail to reinstate your claim?

  • Was the decision to deny your claim because your claim was submitted too late?

  • Do you believe that your employer may be at fault for the insurance company's denial of your claim? Could your claim have been denied because of something that your employer did or did not do with respect to your coverage?

  • Was your claim denied on the basis that there is no evidence to confirm that your condition is severe or to support your claim that you are able to perform the duties our own occupation or any occupation?

  • Has the insurance company required you to participate in its rehabilitation program but it made your condition worse and when you stopped participating, they said you were not complying with the Policy and they terminated your benefits on that basis?

  • Was your claim denied or terminated on the basis that you are not receiving appropriate treatment but you have followed all of your doctors' recommendations?

  • Are you reluctant to take medication or undergo invasive surgery or treatments and the insurance company has denied your claim for not complying with treatment recommendations or having "appropriate" treatment.

  • Has your insurance company relied on surveillance or other information that you've told them with respect to your daily activities to deny your claim? Have they said that you have the the functional ability to do your own or any job based on your self-reported activities or activities they observed on surveillance?

  • Has it been nearly two years since your benefits stopped or since they first denied your claim?  Are you approaching the two year limitation period for commencing a court action in Ontario?

  • Has it been more than two years since your benefits stopped or were first denied but your condition has not improved and you have not yet started a court action and you are wondering what to do?

 

Answering "yes" to one or more of the above questions may mean that litigation is your only option.  Contact us right away and we will discuss your case and help you determine your next steps.

How long does it take to settle an LTD case?

Many clients want to know how long it will take for their case to resolve. We understand timing is important because of the financial and psychological challenges associated with being without an income. The timing of a disability insurance case is difficult to predict. It will depend on many factors, including what actions the insurance company decides to take, as well as court schedules and lawyers’ schedules. All court actions are different and the timing of resolution depends on the facts and issues at hand. We make every effort to move your case forward to a resolution as quickly as possible.  We can give you an estimate of timing once we review your case in more detail.

 

The steps listed below are the usual steps we take representing our disabled clients in their long-term disability insurance court actions. We hope this list and information will give you a general sense of what you can expect as you move through your own long-term disability benefits court action and help you understand why these cases take time to resolve.

What happens in an LTD court action?

1. Gathering the evidence

The first thing we do, together with our client’s help, is to gather all the available facts and evidence to support our client’s claim. This includes requesting the insurance claims file from the insurance company, and requesting medical records and reports from treating doctors, specialists and other treatment providers. We may also send our clients for independent medical assessments to help us prove to the insurance company that our client is totally disabled.

Making these requests often takes significant time and money. The money spent on requesting these documents and medical assessments will form part of our client’s disbursements. We pay for our client’s disbursements upfront. Generally, the insurance company will then repay us for some or all of the disbursements, either during or at the end of the court action, as part of a settlement or court judgment. Any amounts that the insurance company does not repay, will be deducted from our client's settlement when their case resolves.

Although you may have to repay us for disbursements, the cost of these documents and medical assessment(s) is relatively small compared to the value they will add to your case by providing evidence of your total disability. If we are handling your other disability-related claims, we can use these records for those cases as well.  For example, you can use them to apply for benefits such as CPP Disability.  This makes value of these assessments significantly outweigh the cost.  In a senses, they are paying for themselves.

2. Commencing the Court Action

Once we have enough of the information we need about the facts of our client’s case, we will begin the court action by preparing the necessary court documents; serving them on the insurance company; and filing them with the Court. The court document that starts the court action is called the Statement of Claim. This step also involves incurring some disbursements, such as the cost of process servers and court filing fees.

When we send our client a copy of their Statement of Claim, we explain that the amounts claimed in the court action are much higher than they can reasonably expect to receive in a settlement or if they are successful at trial. The reason for making these large claims for damages in the Statement of Claim is because it is often difficult to predict exactly how much our client may be entitled to in terms of benefits, damages, costs, etc., so early on in the litigation. It is important that we make these claims in the Statement of Claim knowing that if we do not include them, we may not be able to pursue them later on in the litigation.

3. Motions

After we start the court action but before trial, we or the insurance company may need to ask the court to make various determinations or Court Orders. Going to court to ask for an Order is called "bringing a motion". Motions in long term disability cases are usually about how the lawsuit should proceed or what documents or witnesses need to be produced for Examinations for Discovery. For example, on a motion, we might ask the court to order that the insurance company provide us with answers to our questions, information, or documents that they are refusing to provide to us. We might also bring a Motion asking the court to impose deadlines for completing various steps in the lawsuit.

4. Examinations for Discovery

Once the facts and documents have been gathered and exchanged by way of the Affidavits of Documents (a sworn Affidavit listing relevant documents relating to the lawsuit), the lawyers will schedule Examinations for Discovery.

 

This is a process by which each lawyer has a chance to ask the opposite party questions about their case and answers are given under oath. This usually takes place in a boardroom, where a court reporter records and transcribes all of the questions and answers. The process typically takes a few hours for each examination, though sometimes the process takes longer or sometimes shorter, depending on the particulars of the case, the lawyers involved and the parties’ ability to answer questions and how much time is taken for breaks.

 

The insurance lawyer will ask to examine our client. We spend as much time as necessary to prepare our client, in advance of their examination so that they know what to expect and to ensure that they will be less anxious during the process. The insurance company’s lawyer questions our client about their disability and about why they are not able to work, as well as ask them to explain some of the documents provided in their Affidavit of Documents. They may also ask us for updated medical records and other documents.  We attend with our client and sit beside them or appear on the video meeting with our camera and microphone on, to ensure that the insurance company’s lawyer’s questions are fair and relevant to the case. 

In a long term disability case, we also ask to examine the person who made the decision to deny or terminate our client’s claim (usually it is the Case Manager / Disability Analyst who handled the claim).  We ask about how they handled our client’s claim and how they reached their decisions in the process. We also ask them for all relevant documents and detailed explanations about those documents and about their processes. Our clients do not attend the examination of the insurance company representative. However, we will report back to our client about the examination of the insurance representative.

While the lawyers will likely be polite, professional and possibly even friendly with each other and with each other’s clients, it is important to remember that at the examinations for discovery, both sides will be working hard to obtain facts and evidence to support their own cases.

5. Review of the Law

Once all of the facts and evidence have been brought to light through the discovery process, we will review the relevant law and evaluate the risks to the client of proceeding to trial as opposed to resolving the case by way of settlement negotiations. At this stage, we provide the client with our opinion about what the likely outcome of a trial would be, and also how much money our client could reasonably expect to obtain at trial or on a settlement. We spend time discussing the benefits and risks of trial and of settlement. We remind our clients that we cannot guarantee any specific outcome. All we can do is provide our opinion based on the law, the facts of the case and our experience in litigating long term disability insurance cases.

6. Negotiation, Mediation and Settlement

Throughout the court action, the parties will have opportunities to discuss settlement. A Settlement is an agreement between the parties to a court action which sets out how they will resolve the dispute (how much will be paid and the terms and conditions of the payment). If the court action is settled, it does not go to trial and the parties agree to have the action dismissed by the Court.

In our experience litigating long-term disability insurance disputes, most cases settle at Mediation. Mediation is an informal process whereby an impartial third-party mediator assists the parties in coming to an agreement to settle the court action.

 

Prior to Mediation, the parties exchange Statements of Issues or Mediation Briefs, these are legal briefs that set out the facts and evidence, issues and arguments that each side intends to make at trial.

 

At the Mediation, we negotiate with the insurance company, following the instructions from our client. We provide our client with information, advice and recommendations to allow them to make the best possible decisions about how their case resolves. Mediation usually takes a full-day and we encourage our client to bring a friend or family member for support.

It is important to understand that it is only at Mediation or by way of informal settlement negotiations that there is the opportunity for the parties to decide how the case is resolved (for example, you decide how much money to accept and other terms of the settlement). If your case does not settle and goes to trial, the judge/jury will make those decisions for you and for the insurance company.

7. Pre-Trial Preparations

If a lawsuit does not settle, it will proceed to Pre-Trial and ultimately, Trial. Preparing the case for Trial includes compiling all the necessary documents, arranging for witnesses to attend, preparing witnesses and evidence, and preparing any legal opinions. Very few long-term disability insurance cases go to Trial. Most cases that have not settled by the time of the Pre-Trial, settle through negotiations or at the Pre-Trial, with the assistance and encouragement of a Judge who provides his/her opinion regarding how the case would likely be decided at trial.

8. Trial

Long term disability insurance trials often last as long as two to three weeks depending on how complicated the issues, facts and evidence are. Usually, these cases are decided by a judge and not a jury. It may take the judge or jury deciding the case an additional few days, weeks, or months after the trial to make a final determination about the case. If the case goes to trial, it could be three or more years or more from the start of the court action to judgement at trial.

It is important to remember that in a long term disability benefits case, if you are successful at trial the judge/jury is only able to award you a Declaration that you are disabled as of that date. This means that you are put back into a relationship with the insurance company and the insurance company will be ordered to pay you benefits owing to the date of trial and some of your legal costs and then it will continue to assess your claim and pay benefits so long as you are complying with the terms and conditions in the insurance policy. The insurance company can terminate your benefits again if they so choose.

If you are unsuccessful at Trial, you will not be awarded anything and you might not owe your lawyer any fees (depending on the Retainer Agreement you signed), but the Judge may order you to pay all or some of the insurance company’s legal fees or costs. This can be quite costly and is an important consideration when deciding whether to go to trial as opposed to settling your case.

9. Concluding the Court Action

If the case settles or if our client is successful at trial, the insurance company will be required to pay money to our client. The funds are sent to us In Trust for our client. We will deposit the funds into our Trust bank account and then distribute the funds to our client, less our fees, disbursements and HST, according to the terms in our Retainer Agreement. We will then either obtain an Order dismissing or discontinuing the court action or give our consent to the insurance company to obtain the Order. Once the court action is concluded; monies paid to our client; and the court action is dismissed/discontinued, we will close our client’s file.

These steps in a Long-Term Disability (LTD) court action are meant to give you a general sense of what happens in litigation. The litigation of these types of cases is complicated, based on contract (the insurance policy) and fact- and evidence- specific. If you have questions about your case or about how your case would likely be litigated, we encourage you to contact us for a free consultation.

Contact

3042 Bur Oak Avenue, Suite 2,  Markham, ON  L6B 0R1

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