Evidence in Long Term Disability Claims

Evidence is a word frequently used by lawyers that simply means information and facts that prove something is true.  In a long term disability claim, evidence is required to establish entitlement to benefits. This evidence may include signed forms, clinical notes, and employment information.  If all goes well, your LTD claim will be approved on the initial application.  But if your LTD claim is denied, it is essential to provide additional evidence to prove disability.

Applying For Long Term Disability Benefits

When applying for long term disability benefits, the insurer must assess whether you meet the test of disability as defined in the policy, usually “total disability” from your “own occupation” for the first two years. This decision is usually made at the early stages with limited evidence, such as the claims forms and family doctor records.  Most claims are approved at this point, but additional evidence is sometimes required before approval or denial.

Evidence When Appealing A Long Term Disability Denial

If your  LTD claim is denied, there is usually an option to appeal.  Most long term disability lawyers will advise against an appeal, since it does not go to an independent decision maker, but rather the same company that denied the claim in the first pace.  In addition, the insurance company controls the entire process. Most appeals are unsuccessful.

If you do decide to appeal, be sure to provide additional medical evidence.  Otherwise, it will certainly fail. You should also consider contacting a long term disability lawyer for advice and help with the appeal.  Michael provides this service for free.  If you are not yet ready to contact an LTD lawyer, consider reading this blog post: How To Write A Long Term Disability Appeal Letter: Top 10 Tips.

Evidence in Long Term Disability Lawsuits

If you decide against an appeal, or you have already been through an unsuccessful appeal, the next step is to retain a long term disability lawyer to commence a lawsuit. When that happens, the insurance company no longer has control over the process.  If the case were to go to court, a judge would decide, and every LTD insurer knows a judge is much more likely to side with an individual than a company that is in the business of collecting premiums and paying claims.  Perhaps not surprisingly, the vast majority of long term disability lawsuits settle long before the case gets anywhere near a courtroom.

When claims are in litigation, there are many more evidentiary issues to consider, so it is important you choose a long term disability lawyer with extensive experience, specifically with LTD claims, not just personal injury or employment law, which are very different specialties.  

The remainder of this this blog post covers the most common types of evidence used in long term disability litigation. 

1)  Long Term Disability Claims File

Every LTD insurance company in Ontario maintains a file for every claim.  At a minimum, this should contain the initial forms completed by you, your employer, and your primary treatment provider; the clinical notes and records of your primary care doctor, and perhaps records from one or two specialist physicians; log notes taken by individuals within the insurance company; summaries of telephone calls; internal and external emails; and, information about the policy, such as the benefit amount, waiting period, policy exclusions, important dates, and the test of disability.

Long term disability claim files are often hundreds, and sometimes thousands of pages.  It is very rare for an experienced long term disability lawyer to conduct a thorough review of the LTD file, and not come across several mistakes and shortcomings on the part of the insurer, which can be of enormous benefit later in the litigation when negotiating a settlement.

2) Treatment Provider Records

In addition to the clinical notes and records contained in the LTD claims file, it is imperative to obtain updated medical records from every treatment provider, not just your family doctor. Prescription summaries, diagnostic imaging, and hospital charts are also important evidence that can help prove the case.  The quicker these updated records are provided to the insurer, the quicker the case is likely to resolve.

3) Narrative Reports

A well written report from a family doctor, treating psychiatrist, or other specialist, can be enormously helpful in long term disability claims.  Often the insurance company doesn’t have such a report at the time of initial denial, or even on appeal.  In one recent case where Sun Life was unsuccessful in defending a denied LTD claim, the judge was highly critical of Sun Life’s internal psychiatrist, but fully accepted the evidence of the treating psychiatrist.  

4) Expert Reports

In many cases, long term disability lawyers will have their client assessed by an expert who will prepare a report to assist with the litigation.  For example, in cases involving depression, anxiety, or post-traumatic stress disorder, an expert psychiatrist would be appropriate.  For chronic pain, a physiatrist or anesthetist would be considered.  For fibromyalgia, a rheumatologist may be qualified to provide the necessary opinion.  It is important to select an expert who is extremely well qualified and balanced.

LTD insurers also have the right to have you assessed by an expert of their choosing, although this is not usually done until later stages of the litigation.  LTD claims are typically settled before the insurer requires you to attend an assessment with their choice of doctor.   

5) Other Records

In addition to medical records and reports, there is other important information that must be secured to advance the case.  These records include tax returns, employment files, and the CPP-disability file.

6) Examination for discovery

An examination for discovery is an opportunity for the lawyers in the case to ask the parties questions.  This means the lawyer for the insurance company can ask you any proper and relevant question about your health, your employment, your level of function, and why you cannot work.  Most people don’t like the idea of such invasive questioning, but your LTD lawyer will prepare you in advance and be with you throughout.  Most defence lawyers are fair and reasonable with their questions.  They just need more information to assess the case.  Fortunately, most long term disability claims settle before examinations for discovery.

7) Corroborating Statements

Long term disability claims sometimes benefit from statements from others who can verify your limitations.  Family members and friends may be able to support your claim, but better are people less connected to the outcome, such as co-workers or your supervisor. 

8) CPP-disability

Most long term disability policies contain a provision that requires application for CPP-disability, and if approved the LTD payments are then reduced accordingly.   The test of CPP-disability is difficult to meet; arguably more so than under a private policy of insurance.  If CPP-disability is denied, this doesn’t mean you don’t have a strong case for long term disability benefits.  If CPP-disability is approved, there is a strong argument that the LTD insurer ought to pay as well.

9) Surveillance Evidence

LTD Insurance companies sometimes hire private investigators to conduct surveillance.  This occurs more often with physical impairments than psychological.  It can be particularly useful for insurers in cases where the individual makes definitive statements such as: “I cannot lift more than five pounds, I cannot cut the grass, and I cannot walk more than 10 minutes”.  If surveillance video demonstrates this person can in fact do those things, credibility becomes a big issue.  Keep in mind surveillance is expensive, and insurers do not do it in every case.  There are also strict rules of evidence that are beyond the scope of this blog post that makes a great deal of surveillance inadmissible and therefore of limited value in litigation.

10) Social Media

Similar to surveillance, long term disability insurers use social media to attack the credibility of claimants. Although there is extensive law regarding the relevance and admissibility of social media evidence, it is best to be very cautious when posting online, so that something that may seem innocuous doesn’t become contentious later in the claim.

There are other types of evidence as well, which could play a significant role in the outcome of your claim for benefits.  For further questions on this or other LTD related topics, contact Michael Jordan directly.   He is a long term disability lawyer with more than 17 years experience, serving all of Ontario with offices in Toronto, London, and Ottawa. 

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Michael Jordan
Jordan Honickman Barristers

Direct Cell: 416-460-6823
Email: mjordan@jhbarristers.com

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