Musings of a Lawyer Involved in Disability Claims for Many Years

Disability insurance is provided to give one peace of mind. Sick or injured, bills will be paid because there will be disability benefits to carry the load. No worries, the doctor just completes a form and the benefit cheque will be in the mail. If only it were that simple.

Disability insurance is a contract. Put simply the insurer is supposed to pay benefits so long as the claimant meets the criteria for being considered “disabled”. Usually the claimant is considered disabled within the first 24 months if essentially they can’t do their job. After 24 months, the criteria get tougher. The claimant must be unable to do any work for which he/she is suited by education, training or experience. A computer programmer earning $100,000 per year would still be considered disabled if only able to work as a parking lot attendant making minimum wage.

The onus to prove one meets the criteria for “disabled” under the disability policy is on the claimant. This is seldom straightforward. Diagnosis of the illness or injury is relevant but not determinant of whether benefits will be paid or not. After all one can be diagnosed with the most serious of illnesses such as cancer and still be able to work. The key issue is whether the illness or injury results in limitations or restrictions that prevent the claimant from working.

Perhaps doing this type of litigation over a long period of time has made me overly cynical. To me the dispute between an insurer and a claimant boils down to this – the insurer is really saying the claimant chooses not to work and the claimant is saying they are unable to work.

How do you prove an inability to work? Many years ago a wise old judge told me that my case was not about truth it was about evidence. Just because a claimant knows in their heart they can’t work and that is the honest truth means little in a dispute with an insurance company. Lawyers acting for claimants must present evidence to support the claim that their client can’t work. Insurers don’t make it easy. I can’t count the number of times I have seen letters from insurers denying a disability claim on the basis that there is no “objective evidence” to support the claim.

So what circumstances increase the likelihood that an insurer will pay or ultimately have a judge order the insurer to pay disability benefits? Listed below are factors that bode well for a claimant in their dispute with the insurer:

1. A good solid work history prior to the disability claim;
2. Medical evidence that not only describes symptoms/diagnosis but most importantly describes how the symptoms impact function (ie. limitations and restrictions);
3. Medical evidence that clearly indicates the health practitioner understands the requirements of the claimant’s job and describes how the limitation/restrictions prevent the claimant from working;
4. Medical evidence supportive of the disability claim from treating health practitioners and not just medical experts (“hired guns”);
5. “Objective evidence” such as investigations and test results supportive of the diagnosis;
6. Evidence that the claimant is obtaining medical treatment appropriate for the illness or injury and following all reasonable treatment recommendations;
7. No indication that the claimant is choosing not to work for personal reasons such as childcare, toxic work environment, and/or care for an elderly parent or relative;
8. No indication from social media or surveillance that the claimant is more active than the claimant portrays to their medical practitioners or to the insurance company;
9. Evidence from lay witnesses that establishes prior to disability the claimant was a productive, energetic, hardworking individual and since the onset of illness or injury things have completely changed.

Unfortunately many of the circumstances that are listed above are beyond a claimant’s control. Some claimants are fortunate to have heath care providers who are willing to put the time and effort into writing the detailed reports that are required. Others are not. It is also very difficult to navigate these waters especially when you are sick, tired and/or in pain. Insurers create an uneven playing field. A good lawyer on the claimant’s side experienced in this type of work is important to make the fight fairer and hopefully attain that long sought peace of mind.

Written by Peter Downs