When long term disability benefits are denied, there are usually two options: appeal or lawsuit. Most LTD lawyers will recommend taking legal action, rather than appeal. There are several reasons for this. First, an appeal is to the same company that denied the claim. The insurer has already made its decision, and probably won’t change it. Second, insurance companies control the appeal process. There is no independent decision maker who will objectively assess your case. And most importantly, the success rate for long term disability lawsuits is much higher than appeals.
The thought of a lawsuit may be intimidating. Most people who have been denied disability benefits have never been involved in a legal action, or even considered what is involved. People may have preconceptions about lawyers, legal fees, the court system, and insurance companies. This article is a brief summary of the major steps in a long term disability lawsuit. For more information, do not hesitate to contact Michael Jordan for a free consultation.
1) Retain a Long Term Disability Lawyer
Most long term disability lawyers offer free consultations and will provide general advice before being formally retained. The retainer agreement is usually on a contingency fee basis, which means there are no fees or other charges until the claim is successfully resolved. When the case does settle, the fees are a fixed percentage of the benefits recovered, less fees paid by the insurer. In most cases, clients recover more than 80% of the benefits settlement amount.
2) LTD Lawyer Will Obtain File
The first thing your lawyer will do is obtain the complete LTD file from the insurer that denied your claim. Most insurance companies will take about 30 days to provide a copy.
3) Lawyer Will Analyse File
The best long term disability lawyers will carefully analyze the LTD file before issuing any documents with the court. There are sometimes glaring errors contained in the file, but more often they are subtle. It is important to retain an LTD lawyer with the knowledge, experience, and expertise to identify these errors, as they can significantly strengthen your case.
4) Lawyer Will Issue Statement of Claim
A statement of claim is a document that is issued with the court then served on the insurance company. It sets out the issues in a general way, and what the claim is for: payment of past disability benefits owed, interest on benefits owing, and a declaration that the insurance company reinstate payment of benefits. In many cases, claims will also be advanced for punitive, aggravated, and general damages to punish the insurance company for its conduct, and to compensate for the consequences of that conduct. The statement of claim must be issued within two years of the claim denial, but the best long term disability lawyers will issue and serve the claim as soon as possible.
5) Insurance Company Will Retain Lawyer To Defend
After it is served with the statement of claim, the insurance company will retain a lawyer to defend the case. Often the lawyer will be “in-house”, which means they are employed directly by the insurance company they are defending. Defence counsel are usually smart, hard working, and good at what they do. They are very familiar with the issues, and their primary job is to settle the claim for the least amount of money possible. It is therefore important you retain a long term disability lawyer who can match or exceed the skills of the insurer’s lawyer in order to maximize your recovery.
6) Document Production
The insurance company probably already has extensive records about your health by this point, but there are always more clinical notes and other records to obtain. Your long term disability lawyer will obtain and pay for updated medical, employment, tax, CPP-disability and other records. These are then organized, analyzed, and provided to the insurance company’s lawyer on an ongoing basis.
7) Examinations for Discovery
In most cases the insurance company will agree to skip this step, and go straight to mediation (see below). But sometimes the insurer wants more information before attempting to settle the claim, and may require an examination for discovery first. This is simply an opportunity for the defence lawyer to ask questions about your health, your employment, and why you can’t work. Defence lawyers are almost always professional, polite, and simply need more information before they can properly assess the claim. Examination for discovery is not a cross examination. Sometimes cases settle immediately after the examination for discovery. Other times a mediation follows two or three months after the discovery.
Sometimes LTD claims are strengthened by expert opinion evidence. If appropriate, your lawyer will retain one or more experts to review all of the medical records, meet with you (sometimes via video conference), and prepare a report. Your LTD lawyer will pay for this expert report, as set out in the contingency fee retainer agreement. It is important to ask your long term disability lawyer who pays for disbursements, including expert fees, in the unlikely event the case is not successful.
Sometimes the LTD insurer will require you to see an expert of their choosing, but that usually only occurs if the case does not settle at mediation.
Mediation is a settlement meeting. The vast majority of cases, more than 90%, settle at mediation. When the case settles, the lawsuit is over. You can read more about what to expect at a long term disability mediation.
10) Pre-trial and Trial
If your claim does not settle at mediation, that does not mean you have to go to court. The next major step is pre-trial, where a judge will help the parties try to settle the case. If the claim cannot be settled at pre-trial, the judge will ensure the case is ready for trial. Less than 1% of long term disability cases go trial, but you want a long term disability lawyer who is able to effectively represent you in case it does. LTD insurers are more likely to pay fair compensation when they know the individual is represented by a lawyer capable of taking the case to trial. So by retaining a well qualified long term disability lawyer, you are increasing the chances of a fair settlement, and decreasing the chance the case will go to court.
Michael Jordan is a long term disability lawyer with offices in Toronto, Ottawa, and London. His success rate is more than 95%. He represents clients across all of Ontario, and offers free consultations.