GROUP DISABILITY INSURANCE

Transcription

1 GROUP DISABILITY INSURANCE I have been asked to speak to you today on the topic of group disability insurance. Note that there is a distinction between disability insurance and accident and sickness insurance. Disability insurance is insurance which is undertaken as part of a contract of life insurance whereby the insurer undertakes to pay insurance money or to provide other benefits in the event that the person whose life is insured becomes disabled as a result of bodily injury or disease (s. 3(i) of the Insurance Act, R.S.N.S., 1989, c. 231). It is governed by Part VIII of the Insurance Act, supra (s. 3(0)(vi». The group disability policies that I have traditionally dealt with have two main components - short-term or weekly indemnity benefits and long-term disability benefits. Short-term/weekly indemnity benefits are intended for those occasions when the insured is off of work on a temporary basis due to illness or accident. In my experience, there is very little litigation over short-term disability benefits. Most insurers are prepared to pay these benefits if they are satisfied that the insured is actually off of work due to illness or accident. In general, most of the cases that I have been involved in concern long-term disability and the question of whether the insured is entitled to long-term disability ("LTD") benefits.

2 - 2 - In order to qualify for LTD benefits, the insured must be totally disabled as defined by the policy. Note that the definition of total disability varies between policies. You must be careful to review the policy in question to determine what constitutes total disability in each particular case. While the wording of each policy can vary, there are two basic types of LTD coverage that are offered - "own occupation" coverage and "any occupation" coverage. "Own occupation" coverage provides benefits if the insured is unable to perform his/her regular occupation or employment. This is a question of fact for the trial judge to determine based on the evidence. "Any occupation" coverage provides benefits if the insured is unable to perform any occupation or employment for which he/she is reasonably qualified by education, training or experience. David Norwood in Life Insurance Law in Canada (1977) discusses "any occupation" policies as follows: "A policy with the 'any occupation' type of definition usually requires that total disability is such that the insured person is prevented from engaging in any occupation or performing any work for compensation or profit. Notwithstanding this allembracing definition, this does not mean that the person is not entitled to the benefit if he is so sick that he can take on only

3 - 3 - trivial or inconsequential work, or work for which he is overqualified, or work for which he is completed unsuited by background. A person is considered not to be totally disabled from engaging in 'any' occupation if his condition would enable him to enter into an occupation reasonably comparable to his old occupation in status and reward, and reasonably suitable in work activity in light of his education, training and experience. The test is, therefore, a subjective one, related to the background and education of the disabled person in question. If he is healthy enough to take up a reasonably related occupation, he is deemed not to be disabled. Again, the actual wording of what constitutes "own occupation" or "any occupation" coverage can vary between policies and you must check to see which type of coverage exists in each particular case. Note that many policies provide for "own occupation" coverage for a set period of time (usually 24 months) and then "any occupation" coverage thereafter.

4 - 4 - While the definition of total disability can vary significantly between policies, the courts have taken a common approach when interpreting the various disability policies before them. The basic principle that has been developed is that the wording of any disability policy must be interpreted reasonably and not literally (see MacEachern v. Co-operative Fire and Casualty Co. (1986), 75 N.S.R. (2d) 271 (N.S.S.C.». The test of what reasonably constitutes total disability was set out by the Supreme Court of Canada in the case of Paul Revere Life Insurance Co. v. Sucharov (1983), 5 D.L.R. (4th) 199 (S.C.C.). In that case, the Court was required to determine whether the insured, the owner/manager of a general insurance brokerage business, was "completely unable to engage in his regular occupation". The Supreme Court of Canada endorsed the views of Mr. Justice Hall of the Manitoba Court of Appeal reported in (1981), 131 D.L.R. (3d) 379. Mr. Justice Hall said at p. 386: "The main thrust of the argument advanced by counsel for the insured is that the sickness of the insurer did not completely prevent him from engaging in his insurance business. He could sell insurance, make telephone calls and attend to bookkeeping. Therefore, he was not totally disabled. In my opinion, that argument fails for the simple reason that it is a reasonable interpretation of the insuring agreement that total disability coverage is provided when, as here, the insured is completely

5 - 5 - unable to engage in his regular business as an owner-manager of an insurance brokerage business. That he may be flble to carry on some of the tasks of running that business in no way detracts from the essential point that for the period in question, he was completely unable to perform the whole of his regular occupation. Here, as in so many other cases, a line must be drawn, with the right to recover if the facts put the insured on one side of the line, and non-recovery if they place him on the other side of it. Where does one draw that line? I would answer that question on the basis of the insured's ability to perform his duties as owner-manager to a 'substantial' degree. Not total ability but substantial ability is the test. In applying that test, and knowing that the insured's attempts to carry on as owner-manager have always brought on attacks of stress and nervousness bordering on hysteria, would say that he is unable, to a substantial degree, to carry on his duties as ownermanager of his insurance business. He is entitled to recover under the policy. " Laskin, C.J.C. in Sucharov, supra, concluded that the test for total disability is whether an individual is unable to perform substantially all of the duties of their position (see p. 203 of the Sucharov decision). This test (whether an insured can perform substantially all of the duties of an occupation) applies whether you are dealing with an "own occupation" policy or an "any

6 - 6 - occupation" policy (see Porter v. Metropolitan Life Insurance Company (1984), 64 N.S.R. (2d) 293 (N.S.S.C.) affirmed on appeal at 70 N.S.R. (2d) 248 (N.S.C.A.». In recent years, our Nova Scotia courts have also developed what is known as the "reasonable employer" test. This test was first referred to by Freeman, J.C.c. (as he then was) in Fulton v. Manufacturers Life Insurance Co. (1990), 96 N.S.R. (2d) 200 (N.S.Co.Crt). In that case, the Court was dealing with an "any occupation" policy. In order to qualify under the terms of the policy, the insured had to be completely unable to perform the normal daily duties of any occupation for which he could become suited by education, training or experience. When rendering his decision, Freeman, J.C.C. stated at p. 212: "The test must be whether it is probable that a reasonable employer would hire Mr. Fulton, either with his present qualifications or those he might reasonably acquire through education or training. " This "reasonable employer" test was cited with approval by Kelly, J. in Moore v. Prudential Insurance Co. of America (1992), 119 N.S.R. (2d) 282 (N.S.S.C.). The burden of proving whether one is disabled is on the insured at all times. This applies even if the insured has received long-term disability payments from the insurer which were subsequently discontinued. Hallett, J. in the case of Porter v. Metropolitan Life Insurance

7 - 7 - Company, supra, reviewed the authorities on this issue and concluded that the ultimate burden of proof always remains with the claimant whether under an "own occupation" or an "any occupation" policy. Reference is made to p. 318 where His Lordship stated: "In a claim under an insurance policy, the insured must prove he is entitled to be paid. In a claim under a disability policy, the insured must prove he is disabled. If an insured, having made payments pursuant to a disability policy, then discontinues them and an action is commenced by the insured, the normal burden of proof still operates. The insured must prove he was disabled within the terms of the policy. It is not for the defendant to prove he was not disabled simply because payments had been made for a period of time. At the very most, the fact that payments were made is evidence that in the opinion of the defendant the plaintiff was disabled at the time the payments were made. But, in my opinion, the fact does no more than require the defendant to offer evidence to explain why the payments were made and then discontinued. " See also Fulton v. Manufacturers Life Insurance Co., supra, and Moore v. Prudential Insurance Co. of America, supra. The above provides you with a basic overview of how our courts have interpreted long-term disability policies and who has the burden of proof in these types of actions. At the

8 - 8 - seminar, I will be providing you with some of the practical considerations you should take into account when dealing with a disability claim. (297979)