Introduction In this first part of our two part installment, we explore the various factors that need to be considered when making a long-term disability claim. First, we start by looking at some disability insurance concepts, particularly the interpretation of “total disability” followed by the distinction between coverage based on “own occupation” and “any occupation”. The second part involves a discussion on the subjectivity of assessing claims and the ‘credibility-war’ often waged by insurers in order to undermine the plaintiff. The objective is to provide readers with an understanding of legal precedents regarding chronic fatigue or fibromyalgia, insurance company tactics, and the reason why an expert long-term disability lawyer is vital to achieving a successful claim. “Total Disability” Interpretation In order to qualify for long-term disability benefits, insurance policies usually require that the claimant have “total disability” that prevents them from engaging in any gainful occupation specific to education, training or experience (known at the “own” occupation test). The test is usually applied to the first two years of disability payments whereby the policy usually changes to payments that are only made to the claimant if they are “totally disabled” from performing any occupation within their training or education or background (known as the “any” occupation test). The Supreme Court of Canada ruling in Sucharov v Paul Revere  establishes the principles which apply to the interpretation of “total disability”. In the case, the insured was the owner-manager of an insurance brokerage company who suffered from hypertension and stress. As owner-manager, he wore many hats and was involved in all aspects of the business including but not limited to operating a brokerage, bookkeeping, sales and customer services. At the onset of his illness, he could perform all these tasks individually, but when business required him to do them all he would be overcome with anxiety that prevented him from functioning. Justice Laskan, in the majority decision, determined that in order to define “total disability” one must look at the job as a whole. He went on to add that the insured is disabled so long as he could not perform “substantially all” of the normal duties of their respected occupation. In subsequent cases such as Hiscock v Metropolitan Life , Sucharov has been taken to mean that the policy definition of disability is to be construed in a liberal fashion, and that the term “total disability” means substantial inability regardless of the particular language of the policy. Furthermore, while the distinction between “own occupation” and “any occupation” coverage is important, the principles of interpretation established in Sucharov apply to both categories of coverage. Disability will always mean the substantial inability to perform the proposed job taken as a whole, and not the complete inability to perform each and every one of the discrete tasks that make up the job. Furthermore, the Courts have often stated that the insured should be considered disabled unless they can perform their regular duties on a consistent basis. The case of Dale v Commercial Union  elaborated on this point by stating that the insured may still be considered disabled, even if they are able to work in a sheltered/non-competitive environment. Onus The use of medical evidence and credibility of claimant is vital to establishing that on a balance of probabilities that he or she qualifies for the disability benefits. With respect to credibility, it is something that comes up extensively in litigation, a topic we will explore in the next segment. However, for the purposes of fleshing out general concepts, claimants should be aware that the best way to prove that they are unable to perform their duties is to attempt to return to work. The often quoted paragraph from Foden v Co-Operators (1979) states that: “No one should be discourages from attempting to take up their former employment or any work out of fear that the attempt might be held against them. Far from necessarily proving that an insured has capability of performing his task, it may … prove the reverse. There is no better evidence of incapacity to perform a task than the failure of honest and sustained attempt to do it” Even if the claimant does offer some consistency in the form of part-time or modified work, they may still be qualified for disability benefits. However, if the claimant is unable to return to work, strong medical evidence is required. Such evidence is important regardless of the “own” or “any” occupation distinction. The court will normally hear the testimony of the insured’s treating physicians, as well as that of specialists retained by both sides, a diagnosis is not prerequisite to a finding of disability. So long as evidence shows an inability to work, it is not necessary for the insured or their doctor to precisely identify the disabling condition. Own Occupation Coverage Own occupation coverage means that the insured is entitled to benefits so long as he is unable to resume his regular occupation. In other words, the occupation the insured was engaged in at the time he became disabled. Reasons for disability can include pain, fatigue or medication among others. Courts recognize that some jobs require much greater precision and consistency than others, which is why the meaning of what it means to be disabled is subject to the insured’s respected field of work. As mentioned in the case of Sucharov business owners are often forced to continue to work through the pain in order to keep their business open, but this is not determinative of the existence of a disability. For employees of a company, Foden tells us they can claim benefits as long as they can establish that their duties are restricted to light work or that their responsibilities have been displaced to co-workers. If the claimant is a specialist, there might be some conflict when it comes to defining what that specialty is and an alternative occupation. For example, in Attridge v Fidelity & Casualty Co. (1972) the insured’s occupation was that of an ear, nose and throat specialist, and held that he was disabled from this occupation. The court found that while he was unable to perform such a task, he was not barred from general practitioner work, and as such could continue his practice. Defining the specialty is something that needs to be given considerable thought, as it can be detrimental to the claim, or amount of benefits received. Any Occupation Coverage As mentioned before a common employer’s group insurance policy provides the disabled with own occupation benefits for a period of one or two years, which transitions to a period of long-term disability coverage on an any occupation basis. What this means is that the claimant will continue to receive benefits during the “any occupation” period, so long as he is prevented in engaging in work for which he is “reasonably suited by training, education or experience” or work which is suited to his “skill and ability” or something similar. This lowering of threshold from one coverage to another is an important transition in a disability claim. Most insurers will put a claim under scrutiny once it reaches such a point, and request updates from claimant’s physicians or other specialist reports. Insurers are also likely to use their own physicians in order to confirm the insured’s status. As for the court, it will be interested in the insured’s mental and physical condition, age, education, work history, tolerance to stress, energy level, consistency and endurance. All of these matters are taken into consideration in assessing the capacity of the insured to succeed at the proposed job. However, policies do not take into consideration high unemployment, or the insured’s capacity to find work. Reaching a Resolution As with most civil cases, there is an emphasis on reaching a settlement prior trail. To do this there are essentially two ways in long-term disability issues can be resolved. First, the insurance company can decide to pay the claimant everything owed to date, and agree to continue to provide benefits so long as they meet the relevant disability test. This means that the insured remains dependent on the insurance company, and their constant evaluation of health and employment status. The alternative is to seek a lump sum that can take into consideration pension entitlement, medical, rehabilitative or any other cost associated with an extended disability. However, as we will explore in the next segment, reaching a favorable resolution is dependent on a wide array of defensive tactics insurers use to limit or dismiss disability claim.
The last six years saw Ontario courts award record-breaking damages to plaintiffs for their traumatic brain injuries. For example, in Marcoccia v Gill ¸ the plaintiff suffered a severe traumatic brain injury to the frontal lobe in a motor vehicle accident. Marcoccia, who was 20 years old at the time of the accident, was left with severe behavioural disabilities and was unable to control emotions or live independently. He required 24/7 care and was rendered incapable of working for the remainder of his natural life. The courts assessed his damages at $16.9 million. The 2008 cases of Gordon v Greig and Morrison v Greig saw two plaintiffs arising from the same accident involving a drunk driver. Gordon suffered a catastrophic brain injury was left without bladder and bowel control, sense of smell, taste and hunger and loss of temperature control and sexual function. Morrison’s spinal injury left him with paraplegia. The court awarded Gordon $11.5 million in damages and Morrison was awarded $12.3 million. More recent cases like Sandhu v Wellington Place Apartments  and MacNeil v Bryan  saw awards up to $18.5 million. Upon first glance of the multi-million dollar awards, it is hard to resist an assumption that we are entering a golden age of plaintiff-sided decision making and over inflated awards. However, none of these cases show a new legal principle, or a change from past reasoning. In this week’s blog entry, we examine the legal principles behind future cost quantifications and what factors you need to consider with your traumatic brain injury lawyer when making a claim. The Principle of Restitutio in Integrum “Full Compensation” The legal principles for the assessment for future care claims can be traced back to a trilogy of Supreme Court of Canada cases. In Andrews v Grand & Toy Alberta Ltd  Dickson J. stated that “full compensation” is the main objective for courts deciding on cases of severe injury. In the context of assessing future care claims, the court in Andrews insisted that the plaintiff should be awarded the most advantageous care possible and could not be forced to mitigate his or her loss by accepting a lesser standard. McLachlin J. in the two subsequent cases of Watkins v Olafson  and Ratych v Bloomer  reaffirmed Dickson J.’s line of reasoning by stating that the plaintiff must be awarded “full and adequate compensation” and “given damages for the full measure of his loss, as best as can be calculated”. In addition, the courts have historically set a low standard of proof when awarding future care claims. In order for the court to conclude that there is a real and substantial risk of a future loss, the plaintiff need only establish that he or she is at risk of a future pecuniary loss. Justice does not require severely injured plaintiffs to just “get by” or “make do” with the cheapest possible care. The Court rejects this approach in support of awards meant to provide a high standard of care. Professor Cooper-Stephenson has described this as “a very high standard of post-accident care” which is meant to anticipate almost any expense that will facilitate physical and mental recovery. As such, the standard of future care for an injured Plaintiff is higher than that normally provided under statutory compensation and rehabilitation schemes. It is important to note that the Court was not prepared to have the level of past care dictate the level of future care. The sole consideration is to attain a level of care that would be most beneficial to promote the physical and mental well-being of the plaintiff. This was evident in Morrison v Greig where Ryan Morrison underwent stem cell surgery in Portugal followed by an intensive rehabilitation program in Michigan to increase his chances of being able to walk again. Glass J approved this alternative form of surgery as a reasonable medical procedure that was not available in Ontario which had a substantial possibility of success and therefore awarded Mr. Morrison the costs associated with the procedure. Factors to Consider when Quantifying Damages for Future Cost of Care 1. Medical Expenses As shown in Morrison v Greig the advancement and availability of new medical procedures is one of the factors that accounts for the rise in court awards. Over the years, both medical professionals and counsel have become more sophisticated in their understanding of serious brain and spinal cord injuries, and as such have developed life care plans to address these impairments. The biggest factor of most life care plans are costs of attendant care that an injured person will need. The availability of volunteer support from friends and family has been rejected as a factor that could diminish the quantum of award. The court had stated in Marcoccia that for the purposes of assessing future claims, the family must be taken out of the picture. As such, it must be assumed that the plaintiff may not continue to live with their parents and be allowed to live in an apartment with attendant care as needed. In other words, damages for future care should be quantified on the basis of what it costs to purchase care in the market place. Brennan v. Singh  encompassed this idea by stressing that injured plaintiffs are entitled to compensation for the value of the services they require, regardless of whether or not services are rendered to them by member of the immediate family. With an emphasis no longer on time, but rather level of care, the value for such services on the market has considerably increased over the years. For example, in MacNeil, the court accepted that the plaintiff required 8 hours a day (ranging anywhere from $24.00/hour to $52.00/hour) of care from a rehabilitation support worker (RSW), who could facilitate her involvement in community and volunteer communities as a part of an ongoing brain injury treatment. This was in addition to the 16 hours a day ($15.00 hour) of basic supervisory care from a personal support worker (PSW). Compounded by an assessed life expectancy RSW fees accounted for almost $4.5 million out of the $15 million cost of future care awarded to MacNeil. 2. Guardianship and Management Fees In addition to cost of medical services, alternative treatments and general inflation, the courts have recognized the cost of guardianship and management fees. Usually, family members of an injured claimant who receives future care cost award in the millions of dollars do not have the expertise on how to properly invest this money for the benefit of the claimant. Therefore, the investment and management of these funds becomes the responsibility of a professional guardian, such as a trust company. This cost is to be calculated after a claimant is awarded a lump-sum at trial. Such sums can be considerable. In Gordon, the fee was more than $520,000 and in MacNeil it reached as high as $830,000. Such fees are intended to cover the fees that the injured person will incur to amend management plans, bring motions to the court for advice and direction, and pass accounts and professionally manage the funds. For example, in Sandhu, a case involving a child falling out of an apartment building window, the court estimated a lifetime of legal fees and management fees to be valued at $400,000. Conclusion With the continued increase in the cost of health care expenses at rates greater than the rate of inflation, we can expect a continuous rise in personal injury awards. To ensure adequate compensation for you and our loves ones it is of the utmost importance that you develop the necessary evidentiary foundation in order to cover future economic losses. At Edson Legal, we will provide the appropriate support through arranging assessments with expert physicians and other health practitioners for each item recommended by a life care planner, along with providing a solid evidentiary foundation to establish the need for management and guardianship fees. With over 30 years of experience, we are here to ensure that you and your loved ones get the best care possible and do not settle for a lesser standard.