Long Term Disability Litigation

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1 Long Term Disability Litigation Ten Practical Tips Steve Rastin Rastin Associates Hwy 12 Box 398 Midland ON L4R 4L1 Tel Fax OTLA 2007 LONG TERM DISABILITY CONFERENCE

2 LONG TERM DISABILITY LITIGATION TEN PRACTICAL TIPS By Steve Rastin RASTIN ASSOCIATES PC This paper is not meant to be an academic treatise but rather a practical guide for litigators who may be considering devoting a larger part of their practices to long term disability litigation For many plaintiffs counsel LTD lawsuits have been an off shoot of acting for victims of motor vehicle accidents However as the Ontario workforce ages there is a significant likelihood that the number of workers finding themselves disabled and claiming LTD benefits will increase The recent elimination of the mandatory retirement age in Ontario may also contribute to this trend More disgruntled workers will complain of being wrongfully denied long term disability benefits It is simple mathematics More claims will lead to more disputes In an era when legislative changes increasingly impair the ability of motor vehicle accident victims to obtain full compensation there is good reason to believe that LTD litigation will naturally become a more prominent aspect of the civil dockets LTD litigation remains dynamic Ten years ago jury notices were barred in LTD actions in Ontario now they are common The doctrine of bad faith has taken root in LTD litigation Insurers are constantly developing new and innovative arguments which have the potential to defeat a claimants action for benefits M Steven Rastin Judge or Jury Where to Turn for Insurance Claims 1998 OTLA Spring Conference DayII Tab 2 and Ramm v Sun Life Assurance Company ofcanada 1999 Ramrn 43 O R 3rd 652 Gen Div 1

3 Tactics and strategy are essential weapons for the claimant and his her lawyer as they cross blades with some of the largest insurers in Canada in these disputes With this in mind we would like to offer some practical suggestions that many lawyers may consider useful as they litigate in this area Please note that these suggestions are by no means comprehensive or exhaustively discussed in this paper and they are raised here simply to give you ideas that might be helpful in building your clients cases TIP 1 OBTAIN EARLY DISCLOSURE OF THE ACTUAL DISABILITY POLICY AND THE LTD INSURERS CLAIMS FILE Unlike motor vehicle claims there is no standard long term disability policy of insurance Policies vary from insurer to insurer and from client to client The scope of benefits offered by LTD policy are directly related to the premiums paid The standard policy offers benefits for two years while the claimant is disabled from his her own lob and then offers benefits until the age of 65 if the claimant is disabled from any occupation for which he she is qualified by education training or experience the so called any occupation clause Depending on the policy benefits will entail payment of a percentage of the workers normal wage usually varying from 60 to 75 but benefits may also include additional items like waiver of LTD and life insurance premiums rehabilitation and retraining 2

4 assistance and contributions to the workers pension plan We recommend that you obtain disclosure of the policy as soon as possible to ensure that you are claiming everything that the worker is entitled to under the policy 2 Further obtaining the policy will allow you to calculate the monthly benefit to which your client is entitled The policy will also set out the test for entitlement Most policies rely on the any occupation test for entitlement after two years but many policies have interesting variations on the themes for example any occupation is sometimes defined as an alternative occupation that will pay at least 60 of the claimants pre disability income Other policies contain appeal procedures and contractual limitation periods that are in some cases longer than the statutory limitation periods A careful examination of the policy at an early stage will often help you quantify the claim determine the threshold for entitlement and allow you to draft a more focused Statement of Claim We also recommend that you write to the LTD insurer and request complete production of the claimants file In our experience the insurer seldom produces the entire file prior to litigation but they do routinely provide the medical and correspondence files 3 Again an examinationof this information will often tend to clarify the issues in dispute and give you a good idea of how to draft the Statement of Claim and what matters will need to be proved to carry the litigation 2 Our experienceis that LTD insurers will often refuse to produce the policy as theyallege that the policy is the property of the employer The LTD insurer will require us to obtain the policydirectly from the employer However once litigationis commenced the policyis usually item 1 in the Defendants Affidavit ofdocuments 3 Although they do often refuse to produce any internal medical documents and independentmedical examination reports they have on file 3

5 Early disclosure of the policy and insurers file will also give you the opportunity to evaluate the case before you embark on full blown litigation In some cases it may be that the insurer was justified in terminating benefits and it is clearly preferable to find this out before counsel has been put to the work and expense of drafting a claim and conducting Examinations for Discovery only to determine that the claimant does not have a viable case TIP 2 CONSIDER WHETHER TO OBJECT TO MULTIPLE ROUNDS OF INSURER MEDICAL EXAMINATIONS Pursuant to the Rule of the Rules of Civil Procedure and s 105 of the Courts of Justice Act a defendant is entitled as of right to compel the plaintiff to submit to a medical examination However what is the impact of medical examinations conducted prior to the issuance of the Statement of Claim It is not uncommon for insurers to require regular medical examinations while a person is on claim When a claim is denied insurers have generally placed the onus for gathering additional medical information on the claimant at his her expense A common exception to this practice seems to occur after the insurer becomes aware that the claimant has retained counsel and is considering litigation It is our common practice to write a letter asking for the file before suing This allows us to evaluate the file and to determine if there is any evidence of improper 4

6 conduct that should be specifically pleaded in the Statement of Claim In some cases however LTD insurers have responded to a request to produce the file by sending the claimant to another round of medical examinations If the examinations support disability benefits are reinstated and the insurer avoids litigation If benefits are not reinstated LTD insurers will routinely schedule another round of medical examinations Be advised however that Zinchuk v Unum Provident of Canada 4 stands for the proposition that a second round of medical examinationsshould not be granted In this case Zinchuks mental health was in question Unum conducted three psychiatric examinations in and 2002 Benefits were terminated shortly after the last examination and the Statement of Claim was issued in 2003 Unum relied on Tsegay v McGuire5 which allowed a fresh examination after a tort action was started notwithstanding that the defendant had conducted two examinations prior to issuance of the claim However Master Egan preferred to follow a line of cases flowing from Binns v Skinner Estate6 where Justice MacDonald refused to allow the same insurer to have separate examinations for accident benefits and statutory third party purposes MacDonald J stated I am of the view therefore that a prior medical examination under one statute or its regulation is relevant No 321 Vinchuld C P C 5th 311 Ont S C J No 3739 S C J 5

7 41111 to the question of whether a medical examination properly may be ordered under the other statute or its regulation Masters and Judges seem wary of allowing insurers to bolster their case when they have already had the benefit of choosing to send a claimant to the doctor of their choice and to make a decision regarding payment of benefits based on that examination While the Zinchuk decision is clearly beneficial to claimants this matter is far from decided 8 TIP 3 FILE JURY NOTICES In our experience insurance companies have always been somewhat reluctant to put their fate in the hands of juries Defence counsel routinely file jury notices in personal injury lawsuits but in those cases they defend in name of the defendant rather than the name of the insurance company It is strictly forbidden to inform the jury that the defendant has the benefit of insurance and in fact even raising the issue of insurance is sufficient to cause a mistrial The concern as I understand it is that juries will be more inclined to find for plaintiffs if they belief that rich insurance companies will be paying the claims rather than the negligent defendant Thus in personal injury trials everyone in the courtroom except for the jury knows the truth but we all play our part in accordance with the Rules 7 Ibid at para 14 See also St Pierre v LibertyMutualInsurance Group 2001 O J No 5973 affirmed on appeal at 2002 O J No 5356 S C J and Ebrani v Citadel GeneralAssurance 1998 O J No 6279 Gen Div 8 Note that as of the date ofthis paper the Zinchuk decision had not beenjudiciallyconsidered 6

8 The situation is different however in long term disability cases where the defendant IS the insurance company In these cases the insurance company is the party listed on the Statement of Defence and Defence counsel is obliged to admit that de facto he is acting for and is paid by an insurer Insurers have understandably been concerned about this level of frankness until the late 1990s their response in Ontario was to deal with the problem by not allowing jury notices in cases relating to the non payment of long term disability benefits Relying on a line of cases flowing from Justice Chadwicks decision in MacLennan v National Life 9 insurers routinely struck out jury notices on the basis that LTD lawsuits were in pith and substance claims for declaratory relief and barred by section 108 of the Courts of Justice Act However that line of cases was over turned by two decisions HaskiII v London Lifel and Rammll which both found that LTD lawsuits are nothing more or less than lawsuits for breach of contract and as such there should be no bar to a jury hearing the case This decisions afford plaintiffs counsel in LTD cases the rare luxury of being able to proceed against a named insurance company with the benefit of a jury in LTD cases where benefits may have been wrongly denied C P C 3d 35 ON Gen Div m 1997 O J No 6044 Gen Div see M Steven Rastin Judge or Jury Where to Turn for Insurance Claims 1998 OTLA Spring Conference DayII Tab 2 for a more detailed discussion ofthis case See also Cullen v Sun Life of Canada approval and follows Rarnm 11 Supra note O J No 1625 which cites Haskill leave to appeal decision with 7

9 You many not want a jury notice on all files but if you do intend to file a jury notice in an LTD case we recommend the following a choose your words carefully when drafting the claim b do not ask for a declaration c do not ask for any sort of injunctive relief our experience is that injunctive relief beyond the trial date is not worth that much anyway d add a paragraph in the body of your claim stating that section 318 of the Insurance Act establishes privity of contract between the plaintiff and the LTD carrier and e add the following paragraph 12 tio John Doe was at all material times an employee of Factory X working out of Toronto Ontario At the commencement of his employment he enrolled as a group insured under the policy The plaintiff claims that his employment was the acceptance of a standing offer to insure made to all employees of Factory X by the defendant and created a contract of insurance between the defendant and plaintiff As a result of the above and changes to the way claims are drafted we now routinely file jury notices without objection in LTD cases 121 am indebted to OTLA member Andrew Kerr for suggesting this paragraphwhich he has been incorporatinginto his long term disabilityclaims for some time 8

10 TIP 4 BE WARY OF ADVANCING CLAIMS FOR UNIONIZED EMPLOYEES An important point to consider when taking on a new LTD file is whether your potential new client is unionized Where there is no union involved LTD lawsuits always proceed by way of lawsuit However depending on the wording of the Collective Bargaining Agreement CBA LTD claims involving unionized workers MAY need to proceed through the arbitration procedures set out in the CBA When dealing with unionized workers counsel needs to examine the wording of the CBA The Ontario Court of Appeal provides guidance on how to deal with the question in London Life Insurance Co v Dubreuil Brothers Employees Assn 13 Mr Justice Gouge ruled that the fundamental test about whether an employee can sue in the Courts or must arbitrate is whether the union and the employer intended that the facts in dispute be governed by the CBA The Court relied upon the test set out in Canadian Labour Arbitration by Brown and Beatty 14 which applies a four fold test 1 where the CBA does not set out the benefit sought the claim is inarbitable 2 where the CBA obliges the employer to provide certain benefits but does not incorporate the plan into the CBA the claim is arbitable 3 where CBA obliges the employer to pay premiums the claim in inarbitable and O R 3d 766 Ont C A 14 Canadian Labour Arbitration 3 I ed 1988 loose leaf 9

11 4 where the insurance policy is incorporated into the CBA the claim is arbitable Notwithstanding this clear statement of principles the matter was recently litigated again in Morris v Manufacturers Life Assurance Co 15 In this case Manulife and City of Toronto were successful in having the LTD claim struck in a situation where the CBA clearly sets out the essential terms of the disability contract and the Group Benefits Contract clearly specified No legal action for the recovery of any claim may be brought against Manulife and directs that claims for benefits should be brought against the City of Toronto 16 It is worth noting that the city and insurer tried to split the claim so that the negligence bad faith and punitive damages claims would remain in the Court however the Judge refused to allow this and held that the City was liable for any misconduct on the part of its agent Manulife and the entire matter should be arbitrated While it is clearly open to employers and LTD carriers to draft collective bargaining agreements so as to require arbitration rather than litigation one has to question whether this course of action is in the best interests of anyone concerned Labour arbitrators are generally unaccustomed to dealing with disability cases and the arbitration process is not generally well suited to this type of litigation in any respect Unions have begun to consider hiring personal injury O J No bid at para 22 10

12 lawyers to deal with these sorts of cases Parties will have to consider however the actual wording of the collective agreement before litigating unionized LTD claims to ensure that the Court has proper jurisdiction TIP 5 DETERMINE WHETHER THE LTD BENEFIT IN QUESTION IS A TAXABLE OR NON TAXABLE BENEFIT It is important to remember that their LTD benefits may be either taxable or non taxable benefits Generally if the employer pays the LTD insurance premiums the benefit will be taxable If the employee pays for the LTD insurance premiums 17 then the benefit is non taxable Given the clear advantage in making this a non taxable benefit it is surprising that all employees dont pay their own premiums While the majority of LTD insurance plans are in our experience non taxable there are a surprising number of policies that provide for taxable benefits especially in the public sector When cases involving taxable benefits are settled insurers will not deduct money from the settlement but rather they will simply issue a T4A in the January or February of the following year Failing to warn a client about this tax liability will expose counsel to an irate complaint at best or an LAWPRO claim at worst 17 Generally the premiumwill be deducted from the employeespaycheck and forwardedto the insurer by the employeron behalf of the employee STEVE RAST1N RAST1N ASSOCIATES 11

13 In the litigation context non taxable LTD policies are easy to deal with If the original benefit was non taxable then any damage award or settlement is also non taxable Matters are considerably more complex however when dealing with taxable benefits Over the last several years there have been a number of cases in the Tax Courts dealing with the question of whether lump sum settlements of LTD claims should properly be taxable as income The Supreme Court of Canada appears to have finally resolved the issue in the recent decision of R V Tsiaprailis 18 In this case the CCRA originally assessed the entire settlement including past and future benefits as taxable The Tax Court found the settlement was not taxable however the Federal Court of Appeal disagreed and ruled the entire settlement was subject to tax In a 4 3 split decision the Supreme Court of Canada ruled that the portion of the settlement intended to replace past disability benefits was subject to tax while the portion of the settlement intended to resolve any future potential claims and any bad faith or aggravated damages claim should not be subject to tax In practical terms this means that when negotiating a settlement Counsel should attempt to have the insurer characterize as much of the settlement as possible as compensation for settlement of potential future claims Note that the breakdown T C J No 856 reversed in Federal Ct 2003 F C J No 431 Federal Ct decision varied 2005 S C J No 9 12

14 must be reasonable Also note that even for past benefits Counsel should get the insurer to issue forms to attribute the settlement over a number of years and the plaintiff should re file recent tax returns to spread out the tax hit Finally remind the client that legal costs are a proper deduction that may be used to off set the tax hit associated with taxable benefits TIP 6 BE AWARE OF PITFALLS RELATED TO LIMITATION PERIODS AND PROVING DISABILITY DURING THE RELEVANT QUALIFYING PERIOD Winning in LTD litigation is about more than proving your client is disabled according to the terms of the policy LTD litigation seems simpler than motor vehicle cases because you dont need to worry about liability questions There are a host of arguments however that an insurer can raise to deny entitlement Some concerns such as failure to mitigate or misrepresentation will be familiar to motor vehicle litigators however some arguments based on entitlement and qualifying periods are unique to LTD litigation A common defence tactic in LTD litigation is to argue misrepresentation Insurers have relied upon failure to disclose and misrepresentation to deny numerous claims Consider the leading Court of Appeal decision of Gregory V Jolley Aetna Life Insurance et al19 In this case Gregory asserted a claim for O R 3d D L R O A C 336 Ont C A 13

15 disability benefits and was successful after a 19 day trial notwithstanding that the trial judge found he had misrepresented material facts relating to his medical condition and income The trial judges decision was based on his conclusion that there was no evidence of fraud and therefore the incontestability clause applied This clause which is common to most policies holds that an insurer cannot void a policy for misrepresentations after two years from the application for insurance in the absence of fraud The decision was overturned by the Ontario Court of Appeal which found that Gregory had misled the insurer with respect to his medical conditions and had grossly overstated his income He was in fact losing money and not making the six digit income he claimed The Court found that the misrepresentations were sufficiently reckless as to be considered fraudulent in the civil sense The result of the insureds failure to disclose material facts or act in good faith therefore made the policy voidable and Aetna was not obliged to pay any benefits even though Gregory was profoundly disabled Material misrepresentation is routinely pleaded by insurers In cases where clients have filled out an application for insurance which will likely not happen in group policy situations counsel should get a copy of the application early in the process and go over the form with the client line by line to look for any possible inaccuracies Remember that innocent mistakes are treated differently at law than fraudulent misrepresentations 14

16 Limitation and Qua intim PeriodIssues Often LTD insurers will provide a relative short appeal window when they set out a denial letter Many letters typically give claimants 60 or 90 days to appeal failing which the insurer will close its file We have had several instances where claimants for whatever reason dont take action within this appeal window and then conclude that they have missed the opportunity to appeal the decision to deny benefits In some cases claimants will wait months if not years before consulting a lawyer If you are consulted by a claimant it is important to actually see a copy of the denial letter The stated appeal window on the letter is not determinative but unless you have evidence to the contrary you should assume that you are governed by the standard limitation period It is worth noting that historically LTD claims were governed by Statutory Condition 12 of the Insurance Act which required that an action be commenced within one year after the date the insurance money became payable or would have become payable if it had been a valid claim However changes to the LimitationAct 2 have brought claims of this nature within the standard two year limitation period 21 Section 22 holds that there is no contracting out of the two year limitation period in the Act unless the agreement was made before the Act came into force 22 It remains to be seen 20 Specifically s 39 4 ofthe Limitation Act 2002 S O 2002 c 24 repealed Statutory Condition 12 Schedule B Section 4 now governs 21 See the most recent LawPro limitations chart s v Accidents and Sickness Note however that for the new limitation to applyto claims it needs to have been DISCOVERED before January January

17 whether contractual limitation periods of less then two years contained in long standing LTD policies will stand up pursuant to this provision It is important to obtain the termination letter because some policies have extended notice periods We have encountered one large insurer that regularly incorporates a two yearappeal period 23 Even if a client has missed the limitation period Morgan v Dominion24 is the root case in a long line of authority that stands for the proposition that benefits cannot be denied until they become due and claimants therefore have a rolling limitation period in which to claim benefits If a potential client comes into your office after the expiry of a limitation period it is important to immediately issue a Notice of Action to preserve the claim to as much of the arrears as possible In situations where the client has improved over time however Morgan may not be able to help you In order for a client to qualify for benefits it is necessary to prove that he she was disabled during what is commonly referred to in policies as The qualifying period It is not enough to prove that your client is disabled as of the date of trial you must also prove that he she was disabled as of the end of the qualifying period Consider for example Lyons v Canada Life Assurance Compan 5 where the jury awarded the plaintiff six months worth of disability benefits covering a six month period in 1995 even though the claim was not 23The Great West Life Assurance Companyof Canada O R H C J Morgan C C E L 3d O A C 299 CanLII

18 commenced until November 1998 The Court of Appeal overturned the award primarily on the basis that an award for benefits for this time period was barred by the limitation period in the policy 26 Plaintiffs counsel attempted to defend the decision using the discoverability principle but that argument was doomed to failure because the trial judge did not reference discoverability in his charge to the jury A better example of the qualifying period pitfall at work is Martin v Manufacturers Life Insurance Company 27 Martin injured herself in a ski accident in April 1998 She did not submit a claim until October 2001 and it was denied in January 2002 due to late filing In June 2003 she commenced an action Justice Bouck conducted a detailed analysis of the policy and concluded that Martin was obligated to file a claim within a specified period of time after the injury Further to succeed she needed to prove that she was totally disabled from working within the qualifying period In Martins case the evidence showed that she was not disabled during the qualifying period but only became disabled later when she ceased working in order to undergo surgical treatment However this later period of disability was found irrelevant Because there was insufficient proof that Martin was disabled during the qualifying period the claim was dismissed 26 The Court also overturned the award of aggravatedand punitivedamages 27 August 2004 Bouck J 2005 BCSC 528 CANLII 17

19 The risk of being found to have become disabled after the end of a qualifying period is significant especially in cases where individuals are suffering from degenerative problems have been terminated from their employment and do not seek legal advice for an extended period of time after benefits are denied TIP 7 CHOOSE THE INSURER REPRESENTATIVE TO EXAMINE CAREFULLY AND NEVER EXAMINE THE LITIGATION CLAIMS SPECIALIST The choice of who to examine in LTD litigation may be a critical decision Many LTD insurers have professional witnesses who travel the country appearing as the representative of the defendant at Examinations for Discovery witnesses will have no direct experience with the file or your client These Generally speaking examining these witnesses is of limited value If you have a legitimate bad faith case examinationsof this sort are a complete waste of time My practice is to require a sworn Affidavit of Documents with Schedule A productions BEFORE I advise the insurer of the person I want to examine LTD insurers are usually good about providing you with internal correspondence We try to identify the lowest decision maker on a file that had a significant role in the decision to terminate benefits Examination of the decision maker may give you first hand information that you would never obtain by examining the insurers professional witness For example a couple of years ago after reviewing the 18

20 production documents we determined that the decision maker on a file was a claims representative based out of Florida I required that she be produced in Canada and under examination she admitted that she had a grade 12 education no medical training no training manual no understanding of Canadian law no knowledge of what CPP disability was had never met my client and did not bother to even schedule a medical before terminating benefits because we dont do that down in Florida Asking the insurer to produce the decision maker may also assist you in determining whether the LTD insurer has farmed out the file to a claims handling company This practice which has only recently come to light involves situations in which large Canadian insurers have contracted with independent companies usually American to assist and or take over claim handling of some files Clients have complained that the claims handling practices in some of these cases have been very aggressive A warning bell should sound if you are told that the decision maker is not an employee of the insurance company Claims handling is a high turn over industry and the adjuster may have left however the adjuster may NEVER have worked for the LTD insurer in the first place You need to determine if that is indeed the fact If necessary find out the identity of the independent claims handling company and add it as a party to your action 19

21 TIP 8 PROCEED WITH PUNITIVE DAMAGES CLAIMS SPARINGLY BUT FEARLESSLY The Supreme Court of Canadas judgment in Fidler V Sun Life Assurance Company of Canada28 should cause the plaintiffs bar to reconsider how we have been dealing with punitive damages in the context of LTD litigation In Fidler the Court affirmed the trial judges award for aggravated damages but at the same time overturned the punitive award imposed by the British Columbia Court of Appeal Faith Hayman who was counsel on Fidler will discuss the implications of Fidler in more detail in her paper From our perspective suffice it to say that Fidler provides guidance from the Supremes on both the applicability of aggravated damages for what have become known as peace of mind contracts and the availability of punitive damages in the insurance context It is important to remember that what the Supremes did in this case was to restore the decision of the trial judge that had been modified by the BC Court of Appeal The Court spent a fair amount of time reviewing the purpose of punitive damages and the general reluctance that the Courts should exercise in awarding those damages The Court made specific note of the fact that the trial judge carefully and fully considered all of the evidence before coming to the conclusion that the actions of SCC 30 CaniII 2006 S C J No 30 Fidler 20

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