Warren Berg: 0:00

Good morning and welcome to the April edition of Ask the Lawyer, across Alberta on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us this month again are Cynthia Carels and Michael Shepard from Weir Bowen LLP in Edmonton.

Cynthia Carels: 0:14

Thanks very much for having us, Warren.

Warren Berg: 0:15

Nice to see you again, Warren. Weir Bowen is an Edmonton-based law firm. However, their lawyers have represented clients all across Alberta, across BC, Saskatchewan and the Northwest Territories, and have been counsel in precedent-setting cases all the way up to the Supreme Court of Canada.

Michael Shepherd: 0:31

Yes, all of us at Weir Bowen have benefited from the tremendous legacy of our firm's founding partners and the many amazing lawyers who've been attracted to the firm ever since.

Cynthia Carels: 0:41

Yeah, I mean not to toot our own horn, but it definitely bears repeating that Weir Bowen really does have a fantastic roster of lawyers. We were doing the calculation there the other day. We've got 22 lawyers now, and many have been repeatedly voted by their peers in the broader legal community as The Best Lawyers in Canada, year after year.

Michael Shepherd: 1:02

That's right, and that includes my ever-talented partner here, Cynthia Carels. As you know, she's been recognized by Best Lawyers in Canada for her abilities in personal injury litigation every year since 2021. It's quite the achievement.

Warren Berg: 1:15

I was looking for a card that had Best Lawyer Congratulations, but they don't sell those, so congratulations on behalf of me.

Cynthia Carels: 1:21

Yes, okay, thank you, that's very kind. Yeah, we are actually pretty proud to have seven of our lawyers who have been voted into the best lawyers in Canada list every or, I guess for this current year.

Michael Shepherd: 1:32

I agree, couldn't be happier with our team At we're Bowen. We have lawyers who practice areas that are pretty varied and they include various types of litigation, and that includes things like wills and estates litigation, some types of insurance litigation, medical malpractice claims of all types, personal injury claims like slip and falls, and product liability and disability insurance litigation as well, and that's an area that's nearly dear to my heart.

Warren Berg: 1:59

So is that what we're going to be focusing on today? Disability law.

Cynthia Carels: 2:02

Yes, whenever we have Mike Shepard in on Ask the Lawyer, we're focusing on disability law. So you actually might recall we had Michael in to talk broadly about disability law and its unique characteristics. I think it was in January of 2023. And we thought the timing would be right now to actually have him back in for a bit of a refresher, to continue, obviously, spreading the word about this really important area of law and also to provide some further practical advice for listeners who might one day actually need disability insurance advice.

Michael Shepherd: 2:32

And I'm glad to be here to talk about this again. I'm quite passionate, like I said, about disability law and really welcome the opportunity to share some of the knowledge that I've gained over the 10 plus years that I've been practicing in the area. It's important to me to get the word out and spread the knowledge to people that may need this and could help them avoid a catastrophic denial of disability insurance. I've run a half-day disability law seminar with Alberta Trial Lawyers Alliance and educating many of my legal colleagues within Alberta, and something I plan on doing again very soon.

Warren Berg: 3:07

Well, if there's one thing that we're really good at on ask the lawyer, it's getting the word out, yeah for sure, and I've spoken here now twice.

Michael Shepherd: 3:16

It's such a critical thing of which everyone should have a basic grasp. Most workers in Alberta have disability insurance, either personally or through their work, and we all like to think that we'll never need to use it. But for the chance that you will, everyone should be prepared for the fact that it does not always go as you planned or you wished and you might be wrongfully denied disability benefits and therefore it's important to know what your rights are, and we'll go over those today and we'll go over some tips, some common issues with claims, and those will hopefully help minimize that risk.

Cynthia Carels: 3:51

Yeah, this is a really big topic and we've gone over some of the basics previously, but I think it would probably benefit everyone to kind of revisit again today. But, as Mike has indicated, we're hoping by the end of this talk today people will actually have a much more in-depth understanding about some of the different reasons why insurance companies might actually decide to deny your disability claim and then to be armed with some strategies to minimize that risk. But in the event that something terrible does happen, we also want lawyers to know there are always options that are available to them.

Warren Berg: 4:31

You just need to reach out for help and a consult. I think probably a good place to start is to first establish what disability insurance actually is.

Michael Shepherd: 4:34

Sure, Disability insurance is a person's economic lifeline when someone becomes unable to work. Insurance companies offering disability insurance in Alberta include companies like Blue Cross, Manulife, Desjardins, Canada Life, RBC and Sun Life, just to name a few. People pay premiums most of their life and commonly through their workplace benefits or through a private plan that they've purchased themselves and potentially they'll never use it. But the idea behind the insurance is to protect against the what if. What if you have a fall into some ice in the winter and you break your hip, forcing you to miss some work? Or what if you get diagnosed with cancer or you suffer a concussion? Disability insurance is designed to step in when you're unable to work due to one of those injuries or illnesses, and the insurer will continue paying you your salary while you remain unable.

Cynthia Carels: 5:26

Yeah, it's one of those products you hope to never actually need to use, but the risk of actually needing to use the insurance is quite real. It is not trivial by any stretch and, according to the World Health Organization, over a billion people will suffer disability throughout the world during their lifetime, most of which will live with that disability for an average of eight years. There's also Stats Canada surveys and insight from 2022 that show 27% of Canadians over the age of 15, so roughly 8 million people in Canada today had one or more disabilities that actually limited them in their daily activities, and that is up from 6.2 million people who reported the same back in 2017.

Warren Berg: 6:13

Now, that's a huge number of people with disabilities and well, my math is correct, 27 percent. That's more than one in four Canadians, right?

Cynthia Carels: 6:22

It seems almost like there's an invisibility of awareness of this, but many of these people are so disabled that they can't go to work, and so we're not seeing them on a day-to-day basis. And without disability insurance, these people would be left with little to nothing beyond some very minimal money that they could be offered through government assistance programs.

Michael Shepherd: 6:41

That's right, and in Alberta, the government assistance would come through programs like the Canadian Pension Plan Disability Arm, that's commonly known as CPPD, and the Assured Income for the Severely Handicapped program that's commonly referred to as AISH, and these programs are great to save lives. You know they keep food in bellies and they have quite strict requirements, though, for eligibility, and they don't really provide much more than the bare minimum and definitely not enough money for people to maintain their homes or vehicles or their lifestyles. Without disability insurance kicking in, if you're faced with a lasting injury or illness, you could lose everything that you've worked for, and as personal injury and disability lawyers, you know we see every day the downstream mental health effects and the economic impacts that come with the loss of the ability to earn a living, and these are the types of files and clients that will definitely keep you up at night worrying about them and help you keep passionate and fervent in your advocacy on their behalf.

Warren Berg: 7:44

I can absolutely see how a sudden loss of income would be devastating. Now having your disability claim denied is this a common problem in Alberta?

Michael Shepherd: 7:53

Oh, very common. Unfortunately, we're one of the only firm that has lawyers that are really experienced in this area, and we've gone through periods where we've been getting several calls a week from people who've been claiming that they've been improperly denied benefits.

Warren Berg: 8:10

So I guess, on top of all the challenges of being disabled, I can't even imagine what it must be like to have to deal with the insurance company refusing to help.

Michael Shepherd: 8:18

You know, people with disabilities have they've always faced discrimination, stigma and barriers to full and equal participation in society. These barriers often come in the form of physical barriers, such as inaccessible building or transportation, or attitudinal barriers such as negative stereotypes and assumptions about what people with disabilities can and cannot do. And unfortunately, these barriers and stigma also exist throughout the system of public and private disability insurance. It's not just that physical and mental disability that can be devastating for people, but also the economic strife suffered by so many who are unable to adequately access the public and private disability income replacement benefits.

Cynthia Carels: 8:59

Yeah, that's right. It's a huge problem for many people, because disability insurance is a type of insurance that is designed to provide financial protection for individuals and their families to keep them from losing their homes or going hungry, and this is money that is supposed to ensure that they have funds to meet their most basic needs and maintain their standard of living if they're unfortunately met with an illness or an unexpected injury that keeps them from working. And, the worst part, many times the denial was wholly inappropriate and even wrong. So for this reason, we can almost always provide some insight into the process for people who want to appeal a denial on their own claim, or even aid them in getting back onto that coverage, and in some cases, believe it or not, we can actually settle the entire dispute by way of a lump sum settlement.

Warren Berg: 9:48

So this is a very interesting topic and in some ways, different than a lot of the topics we've explored before, like motor vehicle accidents and medical malpractice claims. Do people really get denied disability insurance wrongly?

Cynthia Carels: 10:01

Every day. Yeah, just because you have a policy doesn't necessarily mean that an insurance company is always going to cooperate and actually pay you. There are many reasons why applications for disability insurance can be denied, some of which can be fixed by you or your doctor and some which you will probably need legal help to fix. But the most important thing to understand is that many issues in the application that you fill out that lead to an initial denial from an insurance company can be fixable on appeal or through litigation. And just because an insurance company says they don't think you're eligible for benefits doesn't necessarily make it so, and improper denials are quite common, and when that happens we direct our clients straight to Mr. Mike Shepherd.

Michael Shepherd: 10:46

And I'm happy to help, Even if it turns out that there's no case or there was a mistake in the application for insurance that you can easily fix by yourself without retaining me. I provide all of my consults for free to anyone who has been denied disability insurance. I'm usually able to respond quite quickly too, and can often provide that free consult within a day or two of being contacted. We know these cases are urgent and we treat them that way. We also know that plaintiff's counsels like ourselves and the office of the ombudsman we're really the only lines of defense for these people.

Cynthia Carels: 11:24

Yeah, and, like we've said, that's one of the reasons why we're here today, because we really want to educate people on the issue and bring awareness to the fact that a denial of disability insurance is not always justified. There is a very good chance that a person was in fact eligible for coverage. You might just need the right party there helping to guide you through the process and potentially even sue an insurance company on your behalf to help get those benefits that you need.

Warren Berg: 11:50

And I can see why that help would be very beneficial to people, although, like you've said, I'll bet a lot of people don't even know that they can get help once the insurance company has denied their claim. Is this common for people to just accept the denial and move on?

Cynthia Carels: 12:09

Oh yeah, it is, and it could be for a number of reasons, potentially just because of a lack of understanding of the options in the face of a denial, or it could be because of the difficulties finding counsel that actually practices in this area. Luckily, though, when these cases are brought, they are quite frequently successful, which is really important for listeners to know. There's actually quite a high rate of success in the cases, and the courts are also not blind to the common issues faced by disability applicants as well. So it is quite common for the courts to hand out pretty large, what we call exemplary damages. Sometimes they can be in the hundreds of thousands of dollars to punish insurance companies for poor behavior and bad choices in these situations.

Warren Berg: 12:48

So this is probably a really good time to talk to you about well, how our listeners can get in touch If they need to talk to a lawyer about disability insurance issues. What is the best way to connect with you?

Michael Shepherd: 12:58

So the easiest way is just to check out our website at weirbowen. com, and that's W-E-I-R-B-O-W-E-N dot com, and on our contact page there's a form that you can fill in and our reception staff will make sure that your inquiry gets to the right people.

Warren Berg: 13:16

And what if the internet isn't an option?

Cynthia Carels: 13:18

We do frequently also take what we call cold calls. So that's where someone just calls into our main reception line at 780-424-2030. And at that line our receptionist can defer you to one of our big stable of lawyers that practice in this area, and they would all be more than willing to respond to your inquiry.

Warren Berg: 13:39

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us once again today are Michael Shepard and Cynthia Carels of Weir Bowen LLP in Edmonton. Once again, that's W-E-I-R-B-O-W-E-N. Their phone number is 780-424-2030 or online at weirbowen. com. So today we are talking about disability insurance and how important obtaining benefits can be for people who become unable to work due to injury or illness, but you also just brought up the prospect of large damages awards in the case of bad behavior by an insurance company. What is that all about?

Michael Shepherd: 14:23

That's right. Now. Most of these cases are concluded before trial, but if trial is needed, it's not lost on the court how invaluable these benefits are to disabled Canadians and how vulnerable they are to these big insurance companies that are deciding both their economic and their mental well-being. These courts have held that disability contracts aren't just mere commercial contracts, but rather they're contracts with benefits that are both tangible and intangible, and the tangible as far as monthly benefits are concerned, but the intangible and that's such as things like the comfort that the contract should provide and the security in the event that you do become disabled, and this intangible is referred to as the peace of mind aspect of the insurance.

Cynthia Carels: 15:10

Exactly, and that peace of mind nature of a disability contract is what enables courts to actually award those damages for mental distress. It's not typically allowed to award damages for mental distress in other contractual cases and these awards are actually becoming quite ubiquitous with disability court decisions. In five consecutive court decisions in 2020, where the plaintiff was successful, the court actually awarded the plaintiff an additional $10,000 to $50,000 above their missed disability benefit amount to basically compensate them for the mental distress caused by the insurance company.

Warren Berg: 15:46

In the face of that improper denial, and, if I'm not mistaken, a lot of these kinds of policies. They're frequently advertised where it seems like what they're selling is peace of mind as the product.

Cynthia Carels: 15:56

Yeah, no, you're absolutely right on that. The marketing on these kinds of policies leads purchasers to think their insurer is going to be on their side or have their back when they face an unexpected crisis. But unfortunately, another unique issue in insurance law is how vulnerable the policyholder is in the face of the big insurance companies. So it's this vulnerability the vulnerability of the plaintiff and, to a certain extent, the vulnerability of the insurer to the truthfulness of the policyholder was the founding principle behind this legal duty of all parties to an insurance contract to act in what we call utmost good faith.

Warren Berg: 16:32

And I believe we had discussed this duty of utmost good faith in our last talk with Michael. Is that right?

Cynthia Carels: 16:38

Yes, that's right, and we won't go over it in too much detail today, beyond confirming that these contracts of insurance place an extra emphasis on the importance of honesty, transparency and fairness, and that requirement really does go both ways. So these contracts require the purchasers to be extremely honest about the information they disclose to the insurer, because the insurer has to be able to rely on that information to assess their risks, and obviously that risk functions to guide the insurer regarding setting the premiums that you're ultimately going to pay for your coverage. So the courts take this duty of utmost good faith quite seriously, and sophisticated parties like insurance companies are well aware of this duty when they're dealing with members of the public who may or may not be as educated on these issues. So when insurance companies deviate from their duty, that's when we're going to see those substantial awards for aggravated and punitive damages.

Michael Shepherd: 17:34

And, as we talked about last time, often the insurer's deviation from their duty of utmost good faith. Those are manifestations of the insurer not treating the insured even-handedly, on the same plane as themselves. And that's really what it means when you're looking at the duty of utmost good faith and, for example, making decisions that they do sometimes in an evidentiary vacuum or failing to seek outside medical opinions when the plaintiff's doctors are clearly of the mind that the plaintiff is disabled or making a decision on medical records that are conflicting without first taking steps to resolve that conflict. And these are big no-nos and the court commonly steps in. And that's when they're awarding these large exemplary damages awards on the trial decision and that's when they're expecting that there's been some foul play going around.

Warren Berg: 18:23

And so they should.

Cynthia Carels: 18:24

Yes, thank you very much for that support, Judge Warren.

Warren Berg: 18:28

So earlier in the show you had outlined a few different income streams that are available to Albertans who are faced with a disability preventing them from work. Can we go over those again? Yes, of course.

Cynthia Carels: 18:38

So there are both public and private sources of income replacement for individuals who become disabled. Those public sources include medical employment insurance, otherwise known as EI, sickness benefits, and again there are also those disability benefits through the Canada Pension Plan and AISH which we've already talked about. It is important to know, however, that both the CPP disability and AISH do have a pretty high threshold of those disabilities for eligibility for the benefits and it's typically higher than a standard private disability insurance provider, say you know, SunLife, for example. But we do always tell people apply, just in case, even if you don't think you're going to get it, it's not going to affect any eventual case against your disability insurer and you never know if these payments or these programs will actually pay you if you don't apply.

Michael Shepherd: 19:30

That's a good point, and I also notice that sometimes people may not know what benefits they have available to them, and to that end, I always say that it is completely appropriate to check in with your employer and ask about what insurances or medical leave programs are currently in place through your work.

Michael Shepherd: 19:48

And this could be important because some employers do not offer short-term disability coverage at all as a bridge until long-term kicks in and will instead have what they call like a salary continuance program in place for a specific period of time. Other employers may offer short term disability through the same carrier as the long term disability provider, and some other employers may have nothing and require the employee just to seek EI sickness benefits through the government as a bridge for the until they kick in with a long term disability. But whatever the program, though, apply immediately for those benefits. I can't really recommend that enough. It's really important that you're applying for your benefits right away, and almost all of these programs have time constraints depending on the program and state. You really need to stay on top of that, and that will avoid a lot of unnecessary difficulties down the road.

Warren Berg: 20:43

So what do you mean about CPPD and AISH having a higher threshold? Do you have to be worse off to be eligible for some of these benefits?

Cynthia Carels: 20:51

Yeah, you're on the right track. But it isn't whether you are worse off from a medical perspective today or right now. In the short term, the question is whether your condition is considered permanent or long-term. So both CPP disability and AISH require the disability to be prolonged in nature for someone to be entitled to benefits, and that's why we recommend you still apply for your private disability insurance, even if you've already been denied by CPP disability or AISH, because just because you've been found ineligible for one program, that does not mean that you are ineligible for all of them.

Michael Shepherd: 21:27

And that's great advice. And another reason why it's a good idea is because most disability insurance contracts they require an insured to seek out other sources of disability benefits to offset the payments that may be owed to you. And also, like we have indicated, a denial does not mean that you are ineligible. Ineligible, the application process for insurance can be quite complex, requiring the input of both your physicians and your employer, and they may not know what the insurer wants to know. So this process also relies entirely on a fair interpretation of that information that's given by these other outside parties, and you're expecting that company the insurance company that has profit-centered stakeholders to interpret that information appropriately.

Warren Berg: 22:14

So that covers the public programs. What about private disability insurance denials? What do you recommend individuals do when they're faced with a denial from an insurance company?

Cynthia Carels: 22:25

In reality, you basically have three options when you're denied your application for disability insurance. Option number one you accept the denial and just move on to the best of your ability and that could mean, you know, changing careers or changing your lifestyle significantly. Not a great option. Option number two you can file an internal appeal with your case manager and during these appeals you are asked to provide further medical or financial information if needed, and then the file is re-reviewed by the insurer. Again, it's an okay option, but not a particularly great one in many cases. Or option three you can hire a lawyer and potentially bring a lawsuit immediately. Choosing between these three options can be difficult and we consistently advise people call a lawyer and seek legal advice immediately, even if you're considering just accepting the denial or undertaking that internal appeal process on your own.

Michael Shepherd: 23:22

Yeah, exactly Like we said, many times, we find that the person was actually eligible, but they were denied due to a mistake in the application or in the adjudication by the insurance company, and these mistakes can typically be fixed and, if not fixed by agreement, lawsuits can be filed to seek having the error fixed by the courts, and talking to a lawyer will help you decide what happened and what you can do about it.

Cynthia Carels: 23:48

Yeah, and in terms of that internal appeal process, it might make sense in your particular case to file the lawsuit right away instead of going down that internal appeal process, because those processes can take a long time, with up to one or two subsequent appeals required if the insurer maintains their denial, and at each step further information or clarification might be required, and gathering that information can take sometimes months, and this can leave a person without benefits for more than a year after this awful thing has happened to them that caused the onset of disability, and that person could be still no closer to benefit since the lawsuit hadn't been commenced yet. So this can also put a person in a bad situation, given that the limitation period to bring these lawsuits can be as short as two years from the date of the disability, depending on the contract and the laws of the jurisdiction.

Warren Berg: 24:37

So are you telling me that a disabled person could run out of time to file a lawsuit because their case is caught up in internal appeals with an insurance company?

Michael Shepherd: 24:49

That's right.

Michael Shepherd: 24:50

You know timing really matters here and if you feel that you should not be working due to your injury or illness, despite whatever decision comes down from the insurance company, call a lawyer right away. Aside from the possibility that it may make better sense to gain access to benefits quicker through filing an immediate lawsuit.

Michael Shepherd: 25:13

A lawyer can also help an insured with gaining a better understanding of the appeal process if that ends up being your preferred route down the road and you don't want to hire a lawyer right away. The appeals process is complex and it differs quite a bit depending on whether your insurance policy was, say, if you're unionized through a collective bargaining agreement, or if it was negotiated privately between either your employer yourself and the insurance company. In the former case, it's not uncommon for a union, if it's a unionized policy, to appoint a disability advocate to assist you in completing both the application and an internal appeal. And in the latter case, when there's private disability insurance involved, a lawyer can always help provide that same function. You know we get calls every day where I'm helping people just with helping file their appeal and I have no problem doing that down the road. If it comes down that they'll need a lawyer, we'll be there and we can step in.

Cynthia Carels: 26:04

And, of course, as we always say, on Ask the Lawyer. The information we're giving on air today is for information and educational purposes only. It's not intended to be specific legal advice, which can only be given by a lawyer who actually has the opportunity to review the facts, the timelines and all of the records relating to your specific case.

Warren Berg: 26:22

This is Ask the Lawyer on WINDSpeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us once again today are Michael Shepard and Cynthia Carels of Weir Bowen LLP in Edmonton. That's Weir Bowen W-E-I-R-B-O-W-E-N. Their phone number 780-424-2030. Online at weirbowen. com, and today we're talking about some of the options that people have when they're faced with disability insurance denial. Now, what can you tell me about some of the typical reasons that insurance companies will give people when they're denying their disability claims?

Cynthia Carels: 27:01

Yeah, this is one we were really hoping to talk about more today.

Cynthia Carels: 27:04

From the insurer's perspective, it all comes back to the nature of the disability insurance being a contract.

Cynthia Carels: 27:11

So all steps required to be taken by the insured and all of the medical requirements for eligibility should all be contained within what we call the four corners of that policy agreement. So you should be able to look at the document and figure it out, blanketed, of course, with that duty of good faith that we were talking about earlier. So, for example, a policy may contain certain prerequisites, like an easy one, the payment of your premiums and it will also contain detailed definitions of the severity of a disability that will be needed in order to attract those payments. So the policy is going to mandate certain outcomes and steps that are going to be needed after becoming eligible for benefits. That could, for example, be payment of monthly benefits by the insurer, accompanied by an agreement to continue in your medical care and in an attempt to return to work, if you actually can. And failing to meet any of these prerequisites and post-requisites as defined within those four corners of the policy could result in a denial.

Michael Shepherd: 28:12

That's right. These contracts are quite explicit about all of these different types of requirements needed, and the specific wording is quite important. It's very important. The very minor differences in wording, or even punctuation, for that matter, can have a dramatic impact on an individual's ability to collect benefits. Who knew?

Cynthia Carels: 28:34

Yes, the punctuation police? I certainly didn't know until I started practicing law and helping my seriously injured clients try to navigate through all of their disability insurance policies.

Michael Shepherd: 28:44

And another thing to keep in mind.

Michael Shepherd: 28:47

Maybe one of the most important things to consider when faced with one of these denials is that the reasons for the denial are just from the perspective of the insurance company.

Michael Shepherd: 28:58

They don't know your case as well as you do.

Michael Shepherd: 29:01

They don't know the case as well as your physicians even and those are the people who have likely held your hand and helped you every step along the way and help you in the decision to step away from your work and all these insurance companies have done is just assess your case based on information that you, your physician and your employer has provided to them. It's all on paper to them, and that information might be incomplete and it might be inaccurate, and they're making their decisions based solely on their interpretation of the policy, and that could be also incomplete and inaccurate. And, at a minimum, their decision is based on a complex legalese document that they themselves drafted. So you may get some leniency for failing to fully understand the contract or act within these strict rules. The court often do step in and provide some assistance in that manner and a lawyer can help you figure out when that's the case and those are mistakes that you might make in those prerequisite and the post-requisite behavior that Cynthia was just mentioning.

Warren Berg: 30:09

So don't trust the denial is the point they're trying to make In a nutshell, that is correct Do not trust the denial.

Cynthia Carels: 30:15

If you are in fact, disabled from work and you have the support of your physician, then in most cases we think you should be eligible for coverage, and the courts tend to agree in many cases, subject to some really rare pre-existing clause issues or something technical like that. But even then, the important thing to remember is the denial is based on what information is in front of the adjuster or the case manager at the time they're evaluating your case, and the sources of that information, as Mike has indicated, are you, your physician and your employer, and the denial can be based on incomplete information from any one of these sources or even a misinterpretation of that information by the insurer.

Michael Shepherd: 30:56

That's right, and the denial letter that you're going to get from an insurance company when you're faced with a denial, which they will provide you in every case it's going to clearly spell out what information is lacking and if that is what the problem is, and or how they have interpreted the information that's been provided from those three sources, and whether they believe that it's complete or not. Typically, the verbiage for the standard denial is something along the lines of we have assessed your claim and we have found there to be insufficient objective evidence that you meet the criteria contained in the policy for being totally disabled enabling eligibility for benefits, and they may also interpret your physician's charting and base the denial on that misinterpretation as well.

Warren Berg: 31:41

Can you give an example of that?

Michael Shepherd: 31:42

Yeah, sure. So for example, of a misinterpretation of qualitative descriptors interspersed through the chart. This would be things like when your doctor writes things in the chart feeling better or medication helping. Those can be helpful descriptors for your physician but can easily be misconstrued by an insurance company. Reading those charts, they might think that that might mean that you're not disabled and you don't qualify for benefits however, if you ask that very physician who wrote that note, they may say that they're actually describing a situation where the person went from a 10 out of 10 for pain to an 8 out of 10. So they've improved and feeling better. But that doesn't mean that that physician thinks that you're not disabled.

Cynthia Carels: 32:29

To be fair to the insurance adjuster, though, the meaning of doctor's notes can be well, honestly, when we get to meaning, the handwriting of the doctor's notes themselves can be difficult to decipher, let alone the meaning.

Cynthia Carels: 32:41

And these adjusters are tasked with what is an unenviable job of taking imperfect source material like your medical records and your application documents and then trying to piece together all of those other documents to create some sort of complete medical picture in their minds. And then they have to overlay that medical picture onto these technical policy requirements and determine whether your circumstances meet those required for eligibility for benefits.

Warren Berg: 33:08

So how do you even figure out where to start?

Cynthia Carels: 33:10

Well, typically we do start just by reaching out to your doctor personally and we want to just take some time to speak with them directly about your case. With doing that, we'll get a fulsome understanding of what their actual opinion is on your diagnosis and your prognosis and how they feel that relates to your inability to work. Then, with that in mind, we can assist the physician in actually drafting a thorough letter that they can submit to the insurer on your behalf or we can submit it as part of the ongoing litigation. It aims to correct that misinterpretation of you know, perhaps their chart materials, while also providing further information in support of that eligibility to bootstrap your case.

Michael Shepherd: 33:51

Exactly and to be fair to these physicians, we're being so fair today.

Michael Shepherd: 33:57

They don't typically have a copy of your specific disability insurance policy on hand, they're not trained in it and they don't know what the requirements are for you to become eligible for long-term or short-term disability benefits. They also don't necessarily know what the definition of total disability is in your policy. So they're quite frequently in the dark as to what is needed, and they typically need our help as lawyers to help get the word out specifically with what your disability is and the unfortunate. Unfortunately, the typical letter from your GP will say something like James Smith is unable to work for six to 12 weeks. That's not going to cut it and it shouldn't.

Warren Berg: 34:44

To be fair, okay, so that totally sounds like the sort of off work note people get every day. Totally sounds like the sort of off-work note people get every day. So why isn't this good enough?

Michael Shepherd: 34:53

Well, basically, you end up being off work for months, years or permanently in some cases, and this could expose your insurance company to hundreds and thousands of dollars of benefits payments. So it wouldn't exactly be fair to them, to an insurance company, if the law only required a person to walk in any walk-in clinic off the street, pay the $40 to $100 fee for a stock leave of absence letter and then force an insurance company to pay out those hundreds of thousands of dollars. In these cases, it's not a situation where you're being excused for a few days of work or school. When you're faced with a serious disability the stakes are high and much more evidence should be required, and that shouldn't really be controversial here. The problem, though, as I indicated, is that most physicians they don't really know what is needed and most people don't know that the simple two to four liner letter isn't going to cut it.

Cynthia Carels: 35:52

But if your physician is supporting you in your leave being denied for insufficient objective evidence of disability or based on a misinterpretation of that evidence, that should not be an insurmountable obstacle to obtaining a reinstatement or a settlement.

Warren Berg: 36:07

So what is the insurance company looking for exactly? What is this evidence of disability that they require? How sick or injured do you actually have to be?

Cynthia Carels: 36:16

Yeah, it's a great question and that's what we get all the time. Really, this is the most important thing to everyone involved and the answer is basically found in two places Number one, the policy itself, and number two, in the law. So the policy is going to contain very specific language that's been drafted by the insurer to define disability, and this can vary widely depending on the specific policy, but there are some common elements that are typically included. So, for example, most Canadian policies will contain two separate definitions of total disability, depending on how long that person has been off of work. So the first period of time is typically known as the own occupation period of total disability. That's loosely defined as the period in which an individual is unable to perform the material and substantial duties of their own occupation, and that period is typically in play for the first one to two years after a person is off work.

Warren Berg: 37:07

Okay, so now what does unable to work mean in the disability insurance world? It sounds pretty open to interpretation, am I wrong?

Michael Shepherd: 37:15

Yeah, that's exactly the point. It's pretty open to interpretation, no matter how hard the insurance companies have tried to define the interpretation of unable in their respective policies. And this is where the law and a lawyer can really step in, and it's also why some of the answer to your question as to how sick you need to be is contained in the law, as opposed to just the policy itself. I always go back to a really quite eloquent solution to this problem that was put forward by the Supreme Court of Canada several years ago in the seminal case of sukharov, or sukharov. We discussed this case quite a bit last time I was here, but basically the the court said that the language for unable or restricted or prevented in the context of how the injury or illness affects the ability to maintain employment.

Warren Berg: 38:13

So doesn't that mean begging the question as to what those words actually mean?

Cynthia Carels: 38:20

Yeah, you're definitely catching on to the importance of language, both in the law and in these policies, because it seems like every time you get one word that's defined, you use another word to define it and then you need to figure out what the definition of that word is. So you're definitely catching on to that importance of language.

Michael Shepherd: 38:36

Yeah. So what does it mean to be unable to perform your job due to an injury? What does it mean to be physically restricted from performing your job? Do you have to be admitted to the hospital? Do you have to be prevented from work because you've lost capacity completely? And if so, how would that apply to mental illnesses? And the answer is quite simple. The test for total disability is satisfied in. The circumstances are such that a reasonable person would recognize that they should not engage in certain activities, even though he totally is not literally physically unable to do so. So, in other words, total disability does not mean absolute physical inability, but rather there's a total disability if the insured's injuries are such that a common care and prudence, a regular person would just think that they should be desisting from their job.

Cynthia Carels: 39:33

So in essence it's reasonable for you to not be working under the circumstances, then you shouldn't be working and we're going to argue that the law says you should meet that definition of disabled under most policies.

Warren Berg: 39:45

Well, I think that simplifies things and gets some of the legalese out of it.

Cynthia Carels: 39:50

It does yeah.

Warren Berg: 39:53

So what are some of the other reasons why people might be?

Cynthia Carels: 39:55

denied coverage. So, aside from the evidence of disability, there are a host of other reasons we've seen insurers deny claims, but the big ones are number one, pre-existing conditions. Number two, a delay in application and notification of a disability. And three, changes to the definition of disability in the policy, while a person still thinks that they are disabled.

Michael Shepherd: 40:15

Right, and these are really the dangerous reasons why people are denied benefits, and not in the way that they're less likely to be overturned if you want to challenge them, but because they seem reasonable.

Michael Shepherd: 40:31

And for that reason, denials based on these reasons are not appealed as much as they should be, which is another reason why it's so helpful to be here today to get the word out on this. Just because your insurance company says that you're ineligible for disability insurance because they claim that you have a pre-existing condition excluding coverage, or because you applied late for coverage say after six months, but the policy said you needed to apply within one month, this doesn't necessarily mean that that denial should stand. The denial itself might sound reasonable, as though it is justified under the words of the policy, and the policy may seem clear, but the facts are not contested. Maybe you did apply late, but what most people do not know is that you can get excused for mistakenly applying late if the policy, if you have a solid reason for doing so, and there is also quite a bit of helpful law that can help you get out of a denial that's based on a pre-existing condition.

Warren Berg: 41:33

So how does that work? How can a person gain access to benefits when they, let's say, they've messed up on a procedural step, like not meeting deadlines for filing the application? Every month on Ask the Lawyer, we talk about deadlines.

Cynthia Carels: 41:48

Yeah, and every month we also talk about the importance of talking to a lawyer about what the deadlines are that are critical in your specific situation. But that is what makes this area of law so interesting. And, as we'd mentioned earlier, the courts in Canada have recognized the vulnerability of the insured person to the insurer, and this vulnerability plays out in many different ways throughout the case law relating to private disability insurance. So the Supreme Court of Canada has recognized there is a massive difference in bargaining power and knowledge power between the parties involved in these contracts and the fact that a disability contract has been drafted by the very party that has all the power in the relationship here. So, as you can imagine, disability insurance policies are drafted in such a way as to be excessively focused on protecting the position of the insurer rather than openly lenient and favorable for the insured person. And in acknowledging the realities of this industry, the courts have attempted to level the playing field through application of some very old equitable legal maxims like relief from forfeiture and contra proferendum.

Warren Berg: 43:01

Nothing like a good old Latin legal maxim.

Cynthia Carels: 43:02

Yeah, in a nutshell, since the insurance companies drafted the contract, they basically got to make all the rules. So if you have a good reason for the mistake and the prejudice to the parties can be balanced, the court actually might allow you to maintain coverage despite your error.

Michael Shepherd: 43:18

Right, and this can be forgiveness for things like failing to notify the insurance company of the claim in time or failing to submit the appropriate paperwork in time, or even forgiveness for not applying for long-term disability insurance at all, and that could be because maybe you had already been denied short-term disability insurance, and that could be one. Maybe you had already been denied short-term disability insurance and that could be those one of those good reasons. There are many examples, and some new ones are being allowed by the courts every so often based on hard work of disability lawyers willing to take on these cases and see that the just result is made despite some of these clear, draconian policy wordings.

Warren Berg: 43:58

Well, it's good to see that fairness still leads the day.

Michael Shepherd: 44:02

And so it should right. It might not be intuitive based on the policy wording, but your saver might be in the details of these past court cases, and that's another big reason why we tell people that when they're denied disability insurance, call a lawyer immediately.

Warren Berg: 44:17

So that's good advice and I can definitely see that, especially since some of the responses to a denial might only be known within a legal community.

Cynthia Carels: 44:25

Yeah, no, that's absolutely true.

Warren Berg: 44:27

So do these fairness principles apply to other reasons for denial?

Cynthia Carels: 44:31

Oh yeah, they sure do, and the main one would be the pre-existing conditions or other exclusionary clauses in the policy. So exclusion clauses, are provisions in a policy that exclude certain types of disabilities or situations from coverage. So some typical examples of an exclusion clause would include a disability due to an act or accident of war, whether the war was declared or undeclared, could be due to a normal pregnancy or childbirth and, of note, most policies will cover disabling complications arising out of abnormal pregnancy or childbirth, but not normal pregnancy or childbirth or three. An exclusion clause might apply out of any period that you are in jail.

Michael Shepherd: 45:17

Yeah, and the important thing to remember is that the decision as to whether these particular clauses apply is just an opinion of the insurance company who drafted the policy. In this case, it's an opinion on both the interpretation of the wording of the clauses in the policy and it's also an interpretation or an opinion on whether your factual situation meets that interpretation. So these opinions may not be correct and a lawyer will be able to tell you if you have a case to challenge these applications of the clauses. To your particular case, for example, an insurer can apply an interpretation that is much too broad or encompassing to your situation, even though the facts of your case may seem to fall within that category outlined in that exclusion clause that's detailed to you in your denial letter.

Cynthia Carels: 46:07

Yeah, and that's where those fairness principles kick in. Again. The courts have provided some really good insight and have appropriately narrowed the application of many of those common exclusion clauses. The rules are harsh and they were drafted by the insurer without much, if any, input by those of us who are paying for these policies, and it can have devastating consequences for individuals and that's not lost on the courts. So as a general rule, the courts will treat coverage provisions in an insurance contract quite broadly, but it's going to interpret those exclusion clauses quite narrowly and in favor of the policyholder. And that's that application of that legal maximum contra preferendum, which is roughly translated from Latin to English as an interpretation against the drafter of the policy.

Warren Berg: 46:53

So basically, if you're going to draft it, the other person gets the benefit of interpretation.

Michael Shepherd: 46:58

Exactly. It's all about balancing the fairness of the situation, Similar to a rule that I use with my children when splitting anything between them. If one of them gets to split the item, be it a sandwich or a cookie, the other one gets to pick which side they get. So balancing the fairness of the situation where one party has all the power. That's really what the courts are doing here.

Warren Berg: 47:20

I like that, and how does this apply to exclusion clauses?

Michael Shepherd: 47:24

Well, if the language of the exclusion clause is clear and specific, then the court will likely enforce it as written, to be frank, but what may be clear to you might not be quite so clear. It might be ambiguous to a lawyer. So we always recommend to contact a lawyer if an insurance company is denying coverage for an exclusionary purpose. For example, like we talked about earlier with punctuation, just a misplaced comma or use of restricted language can make a really big difference here. It is this small ambiguity that allows the court to get a foothold into that policy and allow fairness to dictate the right interpretation.

Cynthia Carels: 48:04

An example of this would be a typical pre-existing condition clause that prohibits a disability that is caused, within six months to a year following that policy coming into place, by an injury or an illness that was diagnosed or treated within six months to a year prior to the contract coming into place. So let's use an example to make it a bit more concrete. If someone becomes disabled after a heart attack that came into place shortly after the policy started, but that patient was perhaps on beta blockers and blood thinners for heart disease shortly before that policy came into force, that would sound like a clear pre-existing condition that should be excluded from coverage, right?

Warren Berg: 48:44

I would think so.

Cynthia Carels: 48:45

And it would be fair to think that. But what does the word caused mean in this context? It can be a word, one simple word like that. Does it mean the sole cause? Does it mean a contributory cause? Does it mean a partial cause? Many people don't only have one single heart condition that hinders their day-to-day. So what if the heart attack in this case was perhaps only one part of a set of disabling conditions for this individual? Perhaps they also suffered from anxiety and depression and back pain. That doesn't fall within the time frames for those pre-existing conditions. So should an exclusion clause be interpreted so broadly, and should the policyholder be excluded from coverage? If only the heart condition was pre-existing, we could argue it shouldn't be.

Michael Shepherd: 49:32

That's right and we've seen the courts that they'll typically narrowly construe these words caused or our sole cause in the context of an exclusion clause to mean that just that, just the sole cause, and they're not going to allow that word to be opened up to have multiple cause, disabilities included in the framing of that policy and the inclusion of that particular pre-existing condition clause.

Cynthia Carels: 50:02

Yeah, that's really what makes, or what seems to be, a really clear and well-grounded denial a lot less straightforward than it might seem at first glance, and it opens up that denial to be questioned by the court through litigation. It could potentially lead to a pretrial settlement. So, to be honest, having these clauses challenged in open court by you know well-reasoned arguments advanced by experienced counsel who do this all the time, like Mike here it's not something most insurers are actually going to want to do, because when they have one of these clauses fail in court, it can actually set off a precedent that can force a ripple effect through the whole industry. So the obvious problem here is that these are all really technical legal arguments and they're arguments that can really only be adequately selected and utilized by lawyers who know what the heck they're talking about in this area, and so that is another reason to make sure you are talking to a disability lawyer who does this kind of work regularly if you've faced a denial.

Warren Berg: 50:59

I'm starting to see why this is really important to be chatting with the likes of you after a denial. Is there any other common reason for denial that you wanted to go over today?

Michael Shepherd: 51:07

Yes. Another important one is that most insurance policies change the definition of total disability at a certain stage in the policy, and that's typically anywhere between one to two years, and that definition changes from someone being totally disabled from their own occupation to any occupation, and this definition change makes it much more difficult for people to remain eligible for their coverage if their disability from their own job lingers into the long term.

Cynthia Carels: 51:43

So yeah, you might call. Last time we were talking about this, warren, we used you as an example because you know you are a highly esteemed radio host.

Warren Berg: 51:51

Right, yeah, absolutely, as a radio host.

Cynthia Carels: 51:52

If you were to develop, you are, thank you. If you were to develop a disability, though, and needed to miss work, you would typically be considered disabled under the own occupation period should you become unable to perform the duties of a radio host. Specifically, it's not asking whether you can work at all, say, as you know, like a parking lot attendant or a ticket taker at the movie theater and this is why we generally consider the own occupation period to be a more favorable and what we call inclusive definition. It allows people to collect benefits, even if they, technically, could be able to work in a different profession or could be trained to do something else. But maybe you don't want to give up on your career and do something else, and as long as you cannot do your current job, you're going to meet the definition of disabled under the policy, at least for now job, you're going to meet the definition of disabled under the policy, at least for now.

Michael Shepherd: 52:45

Yeah, at least for now is right, because when the policy definition changes from own occupation to any occupation, you might become disentitled. So, borrowing again from that radio host example losing your voice may leave you disabled from your own occupation, rendering you eligible for benefits under the own occupation period. But if you could do something else where your voice isn't needed, say working as a creative writer and advertising department here at Windspeaker Radio, this might just entitle you to benefits at the definition change.

Warren Berg: 53:11

Now this just seems shocking, that you know many people might only have coverage for a limited time, even though they have totally become unable to continue in their pre-disability career.

Michael Shepherd: 53:21

Yeah, it's shocking, isn't it? This is especially shocking for people who are highly educated professionals, and they have spent years, or decades, in schooling and training for their given role. Luckily, though, the courts have again come to the rescue in these situations, and they've softened these hard edges of these provisions. For example, an insurer is not allowed to argue that a CEO is not disabled under these any occupation definitions if they're still labeled to be a Walmart greeter. Instead, the courts have consistently held that the supposed other role has to be similar in both status and reward.

Cynthia Carels: 53:59

So now the any occupation definition is not a strict or unrealistic standard, but rather it's an objective standard that takes into account an individual's realistic opportunities for employment and whether a reasonable employer would hire you given your disability. So basically, the court's going to take into account an individual's transferable skills, experience and qualifications to see whether that role is reasonably suited to the person by reason of their education and training.

Warren Berg: 54:25

More legal arguments that you need a lawyer for Exactly.

Michael Shepherd: 54:28

There are many, many arguments in disability advocates' arsenals, including counters to limitation periods, that we had discussed previously, that we haven't the time to go over today. So really the best take home for your listeners today is just talk to a lawyer, get help. Your insurer might not be right in your denial.

Warren Berg: 54:49

And from what I understand what you said earlier, consults are free and often take less than half an hour. So err on the side of calling.

Cynthia Carels: 54:56

Yeah, exactly as with most things, do err on the side of calling and call early, if possible, please. We get dozens of calls every week and we have a team of lawyers that can ask you the questions that we're going to need to have answered in order to determine whether't make sense to pursue the disability claim. We're often open to taking on these difficult cases if they require litigation, and often being called early allows us to secure that evidence. We're going to need to properly refute those defenses that might be raised and get people the disability benefits that they need on a timely basis.

Michael Shepherd: 55:36

Every case is different and often turns on the facts. It's best if you speak to a lawyer about who knows what they're doing in this area, so they can give you the advice based on your particular set of circumstances.

Warren Berg: 55:49

What kind of information are you looking for in that first call?

Cynthia Carels: 55:52

Well, since most of the time we're contacted by people on a disability matter, they've already been served with a denial letter of that application for disability benefits. So we're typically going to be asking for details with respect to the reason for the denial you know, a list of your disabling symptoms, whether there's been a medical diagnosis or not. Descriptions of how those symptoms are impacting your ability to work and have reduced your quality of life. We're going to ask factors that you weighed in your decision to stop work and, more specifically, whether that decision was made in concert with your doctor and your care providers. We're going to be asking for details about those care providers and their opinions about why you stopped work. And, of course, we're also going to be asking information about your education, your work history, your job description, as well as your salary. And finally, we're going to have some questions about the amount of your expected disability coverage.

Michael Shepherd: 56:42

That's right, and following that call or, even better, before the call, we would also want to be looking at the policy booklet or a copy of the contract, and that would be as well as a copy of the denial letter, if you have it as things progress. If needed, we may also be asking the caller to ask their insurance company for a complete copy of their file so that we can look through the notes of these disability insurance adjusters that have asserted that you are ineligible for benefits.

Warren Berg: 57:13

That seems like a lot of information. What if somebody doesn't have all of those answers?

Cynthia Carels: 57:16

Totally okay. It's okay if you don't have the answers. Many times our potential clients don't have all the answers and that's why we encourage you to call early. We may need to hire experts, talk to your doctors and even coordinate production of records with your insurer right away.

Warren Berg: 57:29

And hiring experts sounds expensive, so does this mean you have to have a lot of money in order to be successful in a disability lawsuit?

Michael Shepherd: 57:36

Thankfully, no, you know, people have denied disability benefits. They have no job, they're not getting benefits. If it's our opinion that a potential client has a meritous case, we will generally run these kinds of cases on a contingency fee agreement and we get paid based on a percentage of what we ultimately recover for our clients. The law societies have identified that the cost of legal fees on an hourly basis can present quite the barrier to justice and they do, and particularly for individuals who have been injured as a consequence of someone else's negligence or they've been denied disability insurance and therefore they have no way to pay for a lawyer. So clients who can't work or need money to pay for treatment don't also need to worry about coming up with the resources they need to pay a lawyer's fees, especially since these cases can take time to work their way through the system.

Cynthia Carels: 58:29

Yeah, so hopefully today's show has given some of our listeners hope that they might still have an option for recourse when their insurance company refuses to pay those disability benefits that they were really counting on Indeed Well, once again, we have covered a lot of ground today in the April edition of Ask the Lawyer for 2024 with Michael Shepard and Cynthia Carels of Weir Bowen LLP and Edmonton.

Warren Berg: 58:50

For more information, visit their website weirbowen. com. That's W-E-I-R-B-O-W-E-N. W-E-I-R-B-O-W-E-Ncom. 7, 80, 4, 2, 4, 20, 30. You can also find a link to Ask the Lawyer on the CFWE and CJWE homepages, where these shows will be available to stream on demand. Our thanks once again to Michael and Cynthia.

Michael Shepherd: 59:12

It was great being here, Warren.

Cynthia Carels: 59:13

Yeah, thanks as always for giving us the opportunity to share just a little bit of legal education on a really fascinating area of law with your listeners.

Warren Berg: 59:21

And from me and from our listeners. You're most welcome. I'm Warren Berg, and we look forward to learning more through this series, which takes place here on the last Saturday of every month on Windspeaker Radio CFWE and CJWE.