A significant amount of Canadian long-term disability claims are denied. When some people attempt to appeal the decision this almost never changes the opinion of the insurance company which has denied the claim. This leaves people with only one choice if they want to enforce their rights, start a legal action.
Starting a legal action to enforce your rights under your insurance policy can be intimidating, especially when you’re going up against an insurance company with almost limitless resources. Most people with a claim don’t have any idea how a long-term disability claim works or what happens.
We’ve put this blog post together so our clients can get an idea of what happens in a long-term disability claim.
Gathering Evidence
The first step in a denied long-term disability claim is gathering the evidence you’ll need to ensure you have a good claim. There are only two big steps to take. The first is to ensure that your treating doctors are in support of your disability and the second is to request an entire copy of your insurance file from your insurer. The insurance file will have most of the information you need to run your claim.
Filing Pleadings
Once you are ready to start your claim you need to file your Notice of Civil Claim (or NOCC), which contains the factual and legal basis for your legal action, with the Supreme Court Registry to start your lawsuit. You then serve your filed Notice of Civil Claim on the insurance company’s registered records office. The insurance company will then hire a lawyer to represent their interests in the lawsuit and that lawyer will file a Response to Civil Claim (or RTCC), which contains the insurance company’s factual and legal response to your claim.
Both parties are expected to serve Lists of Documents which contain all relevant and producible documents in their possession that relate to the lawsuit.
All these documents are referred to as pleadings and are the basis of the legal action.
Examinations for Discovery
Examinations for Discovery are when the lawyer for one party examines the other party under oath to tell the truth. The questioning lawyer can ask any questions that relate to the subject of the lawsuit.
In most legal actions both parties discover the other on or near the same date. Legal actions for long-term disability claims differ in that the insurance companies do not like their insurance adjusters to be examined for discovery if it can be avoided. Usually, but not always, the insurance company will examine the plaintiff in a long-term disability claim and then see if the claim can be resolved by negotiation through mediation.
Mediation
Unlike most other legal claims, a large number of long-term disability claims end at mediation following the examination for discovery of the plaintiff. The examination of the plaintiff is used by the insurance company to determine the extent of their exposure and how well the plaintiff will present on the witness stand at trial.
Mediation is a confidential and informal process in which an independent third party (the mediator) assists both sides in trying to resolve the claim without the time, money and stress involved with the court process. To learn more about mediation you can visit the MediateBC website here.
Most long-term disability claims are resolved for a lump sum buy out of the plaintiff’s insurance policy at a present day value reduction, with the plaintiff receiving less than 100 cents on the dollar in recognition of the benefit of receiving a large amount of money at once, as opposed to small amounts on a monthly basis over several years.
Independent Medical Examinations & Trial
If the claim cannot be resolved through mediation or through negotiation, then it will proceed through the litigation process.
The next step will be each party marshalling their expert opinion evidence. For the plaintiff their lawyer will arrange the independent medical examinations they require to prove their case. The insurance company is also entitled to independent medical examinations under the Rules of Court, to level the playing field.
If the nature of the plaintiff’s disability is physical in nature, the parties will likely get an opinion of a physiatrist or orthopedic specialist. If the disability is psychological in nature the parties will get a medical opinion of a psychiatrist or neuropsychologist.
Only expert opinion evidence served according to the Rules of Court will be allowed to be entered as evidence at trial.
If the parties are unable to resolve the claim the matter will proceed to trial. At trial the parties will put forth their theories of the case, call their fact evidence and expert opinion evidence, and then give their closing arguments. The presiding judge will then render judgment. In unusual circumstances the judge will render a verdict right after the trial from the bench. Usually, a judge will reserve their decision instead of giving it at the end of a trial. It is quite common for judicial decisions to come out 6 months to 12 months after the trial is completed.
Every Claim is Different
The foregoing is just a brief overview of the process of how a long-term disability legal action works. Not two claims are the same and they are always dependent on the particular facts of each case.
If you have a denied long-term disability claim contact the experienced insurance denial lawyers at Taylor & Blair LLP today. Long-term disability claims have strict timelines in which you have to act.