LTD - The year in review: Ten things you ought to know
As the Ontario workforce ages, there is a significant likelihood that the number of workers finding themselves disabled and claiming LTD benefits will increase. Recent proposals to raise or eliminate the mandatory retirement age may also contribute to this trend. Plaintiffs’ lawyers will likely encounter more disgruntled workers complaining of being wrongfully denied long-term disability benefits. It’s 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, lawyers may find that LTD litigation naturallybecomes a larger part of their practice.
LTD litigation remains dynamic. Ten years ago, jury notices were barred in LTD actions in Ontario; now they are common.1 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 Claimant’s action for benefits. 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 have set out a few recent developments that Plaintiffs’ lawyers might find useful as they litigate in this area.
The Impact of the Pre-Claim medical examination
Pursuant to the Rule 33.01 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 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.
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1 M. Steven Rastin, “Judge or Jury: Where to Turn for Insurance Claims”, 1998 OTLA Spring Conference, Day II, Tab 2 and Ramm . Sun Life Assurance Company of Canada, (1999), 43 O.R. (3rd) 652 (Gen. Div.)
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