Ask an Insurance Denial Lawyer: April 20, 2017



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  • Thank you all for particpating. Should there be any further questions in the future, you are welcome to contact me at 604-583-2200, or at mwillemse@wmlawyers.ca



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  • @martinw It is very challenging to separate strong emotions when I am in severe pain. I know that it does not further my cause of recovery and accessing the help I need, but it is a frustrating process. My treating MD downplays my pain often, it gets frustrating . I am concerned what my future looks like 2-5-10-20 yrs from now . Will I ever have the opportunity to return to doing the things I love in life ?



  • I often get questions about appeal processes.

    Clients have often said to me that their idea of an “appeal” would be a process where an independent body reviews the decision previously made by a different entity. Not so. The appeal is conducted either by the initial decision maker, or a different entity within the same insurance company.

    If your claim is denied, make sure that you get the denial letter, as it generally does review (sometimes very briefly), the medical evidence and why the claim was denied. It will also indicate what steps to follow to appeal the denial. It is extremely important to note that once the claim has been denied, the limitation period within which to file a lawsuit runs regardless of whether you choose to proceed with an appeal. In other words, the appeal process does not stall the limitation period from running. In some instances (non-profit disability benefit plans), the internal process is mandated by the language of the plan text. This would mean that there is a set procedure to appeal the denial, and the step by step process is set out in the plan text. This may mean, depending on the language of the text in conjunction with the collective agreement, that filing a lawsuit is not an option, and that the final appeal process (often the decision of a claims review committee, is final and binding). In the majority of other cases, where there is no such formal mandatory appeal process, the appeal is optional. This means that you do not need to exhaust the appeal process before filing a lawsuit. The moment the disability claim was denied, the right to file a lawsuit was triggered. Be wary of limitation issues if you opt to pursue an appeal as opposed to filing a lawsuit. It is not always clear when the limitation period begins to run, and will depend on the language of the policy, as well as the language in the Insurance Act.

    Should you opt to proceed with an appeal, new medical evidence is often required. Simply asking your treating physician for another report is not the best option, as it may lead to an opinion that has the taint of advocacy, which will carry little weight. Consider obtaining reports from specialists if not yet provided; consider further testing / imaging which may bolster the medical evidence, and in the latter case, have your doctor comment on the new test results in a supportive yet objective manner.

    It is not advisable to engage in a letter war with the insurer. I have seen many cases where the disability claim was denied and where the claimant then got involved in an escalating letter war with the insurer (and in some instances the treatment providers would also get involved). This will likely reduce the likelihood of the appeal being successful, and more importantly, may even harm your case. It is a natural and human response to want to convince the insurer why it made a mistake by denying the claim, and trying to convince the insurer to reverse its decision. This is often done by claimants at a time when they are desperate, and suffering from the full effects of their symptoms. It is in this context that claimants often write passionate or threatening letters to the insurers, often unknowingly providing to the insurer further evidence to bolster its denial, as opposed to supporting the appeal.

    Focus on obtaining supportive (and objective) medical evidence that has not yet been provided to the insurer. Further tests (for example nerve conduction studies in certain cases) which are reviewed by treating physicians in supplementary reports are always helpful. If not yet done, clarify the particular job duties that you had and correlate that to the restrictions and limitations that you have as a result of your medical condition. Do this is in a concise, clear, and non-threatening manner when submitting the appeal.

    An appeal process can be daunting and stress-inducing. You do not need the assistance of a disability lawyer to file an appeal. Having said that, I have seen many cases where clients did appeal the denial and provided information with the best intentions to the insurer, which information ultimately proved to be more harmful than helpful, which then had to be deal with in the context of a lawsuit.



  • @chloe

    Chloe, yes I have. It depends on whether you have an individually purchased policy (which I believe you do have), versus a group disability policy through your employer. An individual policy is always in force, as long as the premiums are paid. A relapse should be covered. It also depends on whether you have an own occupation rider. If it is a group policy, it is a little trickier, depending on whether you return to your previous employer, or to a different employer. Most policies have recurrent disability clauses, but again, it will depend on the language of the particular policy, as some recurrent clauses require a return to the previous employer to allow for further coverage if the disability reoccurred within a certain period of time. It really depends on the language of the particular policy, as even individual policies may have different provisions depending on the type of policy.

    @martinw Have you dealt with cases whereby a person starts to claim their LTD and recovers or learns managing skills to return to work and then has a severe relapse in chronic pain and needs to return to the LTD claim? If so, how can a person insulate themselves from this?



  • @martinw Have you dealt with cases whereby a person starts to claim their LTD and recovers or learns managing skills to return to work and then has a severe relapse in chronic pain and needs to return to the LTD claim? If so, how can a person insulate themselves from this?



  • Pain BC is often asked about the impact on the mental health of a person living with pain when involved in a disability application or appeal process.

    Statistics have shown that one in five Canadians will experience a mental health problem or illness in any given year. Mental health problems and illnesses are rated in the top three drivers of both short and long term disability claims by more than 80% of employers in Canada. Mental health illnesses account for approximately 30% of all long term disability claims. (source: Making the Case for Investing in Mental Health in Canada – Mental Health Commission of Canada).

    As stated before, pain is a very personal experience. It cannot be measured. Pain affects people in all aspects of their lives: in their work life, their recreational life, in their relationships with their family members and friends; it creeps in everywhere. Inevitably, it affects a person’s mental health, especially so in instances where treatment has proven ineffective, and where the condition appears prolonged. Diagnoses in the form of depression and anxiety are routinely made where individuals live with pain.

    When a person living with chronic and complex pain, and comorbid depression and / or anxiety, has his or her disability claim denied, or when that person is embroiled in an appeal process when they really should be focussing on their treatment, the added anxiety of having to fight for their benefits has very real and dire consequences on the person’s mental health. It is ironic then that making a claim for benefits pursuant to a peace of mind contract (the disability policy), when the benefits under that policy are most needed, ultimately results in an exacerbation of the disabling condition. This is why when I meet with clients who are going through this process, they are often bitter and angry about not just the process, but also about how they feel judged as being dishonest about their reported pain levels.



  • @chloe

    You are welcome. To be clear on your earlier question: if there is a 24-month own occupation period in your policy (in case you do not have an own occupation rider), the definition for total disability would change at the end of the 24-month own occupation period to that of any occupation. The insurer may not have advised you of this, but any occupation does not literally mean ANY occupation.

    @martinw Will do ,Thank you



  • @martinw Will do ,Thank you



  • @chloe

    I believe some work at an hourly rate, others, like me, work on a contingency basis. There is a time limit on filing a lawsuit, however, it depends on the exact circumstances and the language within the policy to establish when it starts to run. Generally, it is a 2-year limitation period. It would be wise to have your specific claim reviewed by a disability lawyer to review any limitation concerns.

    @martinw Do many disability law firms work on contingency?
    Also, is there a time limit on challenging a denied LTD case?



  • @Forum_Moderator

    Yes, all the time. This is a huge problem when dealing with chronic pain cases. Firstly, when a person lives with pain, it is crucial that he or she receives all possible support from those around him or her, be it from family members, friends or others. Mental health disorders such as depression and anxiety are common co-morbidities for people living with pain, and understandably so. Pain is a very personal experience, and cannot be measured. It is a very lonely place to be. If you are not supported by those around you, it impacts heavily on an already compromised mental health, and in turn, impacts detrimentally on the pain condition itself, and the ultimate prognosis for a recovery. I have seen many clients break down when describing the lack of support from those around them, and how it affects their mental state. Many feel suicidal.

    Some clients do report that they do not feel supported by their doctors, especially in cases where the disability arises from complex and chronic pain. This may be due to frustration on the part of the doctor that the patient is not showing signs of improvement, despite employing all known conventional therapies. And in turn, this often is as a result of the treating physician not having the skills or experience treating chronic pain patients. With holistic treatment approaches, and multidisciplinary team approaches becoming more acceptable and better known when treating chronic pain, this bias towards chronic pain patients will hopefully turn.

    I do not see clients who have had their disability claims approved, therefore I can only speak of what is reported to me by clients who have had their claims denied. With that qualification, I can report that there appears to be a very definite bias towards “subjective” chronic pain disability claims. Suggestions of malingering and motivational issues (for example insurers may suggest to vulnerable claimants that what is really at play is not a disability, but a workplace issue that is the reason for the work absence), are often reported. I have had numerous clients reporting that they have felt harassed and / or bullied by the case managers assessing their claims specifically on the issue of their claims not being supported by “objective” medical evidence. This of course does not bode well for any potential recovery, as the anxiety created by these impressions negatively impact the disabling condition. Once the matter is in litigation, my clients are sheltered from no longer having to deal with the insurer’s case managers themselves, as their interests are then represented in a different forum with no further contact on their part with the actual person who denied their claim.

    Let's move to another question:

    Many people living with pain feel stigmatized or not taken seriously by their doctors, families, and insurance providers. Have you witnessed this firsthand with your clients?



  • @martinw Do many disability law firms work on contingency?
    Also, is there a time limit on challenging a denied LTD case?



  • Let's move to another question:

    Many people living with pain feel stigmatized or not taken seriously by their doctors, families, and insurance providers. Have you witnessed this firsthand with your clients?



  • @chloe said:

    Chloe, this is a very good question as it arises routinely in denied LTD claims. There is a limitation period that is running to file a lawsuit once a claim is denied. The tricky question may be when does it start to run - a limitation period is generally two years, but some policies may have language that would allow for a longer period.

    Waiting lists are a reality that cannot be ignored by insurers. The best approach would be to ensure that you are placed on the waiting list as soon as possible. You are required to take reasonable steps, and being placed on a waiting list in an overburdened medical system is arguably a reasonable step.

    @chloe reading through the reasons for denial of LTD It is almost a Catch 22 . I could be denied because I can not access specialist either through long wait times or funding.
    Is there a timeline on claims? Do you reopen cases that have been denied last year?



  • @chloe Chloe, this is a very difficult position to be in. Accessing optimal healthcare is always challenging when the waiting times are this long, especially when you have to see a specialist. There are some private options, but of course that would require private funds. However, one option, if your claim were to be denied, is to pursue an independent medical assessment, which may be funded by a law firm. This would alleviate some of the waiting period to see a specialist (although it will not be for treatment). Having said that, the specialist may make some treatment recommendations and his or her report can then be provided to your treating physician to implement those treatment options on an expedited basis.

    @chloe said:

    @martinw Thank you for the information. My reality is that I have had to leave my career due to chronic pain and I am living off my savings while my LTD case is reviewed. I have never had an extended health plan , I rely on MSP funded options, to see a specialist can take months and at one doctor's office( they specialize in chronic pain) I was told a two year waiting period recently. I have two questions that relate to denial of disability claims
    -how do I access optimal treatment when the waiting times are so long
    -how do I pay for this treatment



  • @chloe reading through the reasons for denial of LTD It is almost a Catch 22 . I could be denied because I can not access specialist either through long wait times or funding.
    Is there a timeline on claims? Do you reopen cases that have been denied last year?



  • @chloe, thanks for sharing this with us. That's a very difficult situation when you're faced with paying for treatment without an extended health plan. If you're in BC, Pain BC has a service called Connect for Health that may help with some of the challenges you're facing (beyond the doctor's office).

    https://painbc.ca/chronic-pain/connect-for-health

    @chloe said:

    @martinw Thank you for the information. My reality is that I have had to leave my career due to chronic pain and I am living off my savings while my LTD case is reviewed. I have never had an extended health plan , I rely on MSP funded options, to see a specialist can take months and at one doctor's office( they specialize in chronic pain) I was told a two year waiting period recently. I have two questions that relate to denial of disability claims
    -how do I access optimal treatment when the waiting times are so long
    -how do I pay for this treatment



  • @martinw Thank you for the information. My reality is that I have had to leave my career due to chronic pain and I am living off my savings while my LTD case is reviewed. I have never had an extended health plan , I rely on MSP funded options, to see a specialist can take months and at one doctor's office( they specialize in chronic pain) I was told a two year waiting period recently. I have two questions that relate to denial of disability claims
    -how do I access optimal treatment when the waiting times are so long
    -how do I pay for this treatment



  • @Forum_Moderator:

    There is no sure way to have a “watertight” claim. Insurers, and in some instances the courts, take a cautious approach to disability claims based on “subjective conditions”. Consider the following reason for a denial (from an actual claim): “The medicals provided in support of the claim do not provide a clear diagnosis and do not clearly outline what prevents the insured from performing his / her work duties.” Therein lies a hint: ensure that the medicals provided in support of the application are not “insufficient”. This is easier said than done. I have heard time and again from clients that treating doctors are frustrated that their opinions are generally dismissed in the assessment by the insurer. Therefore, the treating physicians may not go the extra distance to clearly outline the diagnosis, and the specific restrictions and limitations, and very importantly, how those impairments affect the person’s specific job duties to the extent that they would be totally disabled within the meaning of the policy. It is not enough to simply provide a diagnosis and state that the person making the claim is disabled and unable to work. What are the restrictions and limitations? How do those restrictions and limitations impact the person’s actual job duties? To provide such an informed opinion, the treatment provider must have an understanding of his or her patient’s job duties. At the other end of the spectrum, the treatment provider may feel that he or she should go overboard in trying to convince the insurer why the patient cannot work. This is also not advised. As soon as a treatment provider’s opinion appears emotional or subjectively based, that opinion, regardless of how valid and sound it may be, will be at risk of losing weight as it will have the taint of advocacy, which can be quite detrimental to a disability claim.

    As opposed to submitting a “bare bones” application, consider gathering all relevant medical evidence, such as consult reports of other treatment providers, specifically experts who have been consulted, test results, imaging results, etc. Of course, if the imaging proves to be “normal”, that may play into the insurer’s hands by stating that there is “insufficient objective medical evidence” to support the claim. Again, this is something I routinely see when a claim is denied, and again, there are specific strategies to employ depending on the specific circumstance.

    Remember that the policy mandates that the disabled person making the claim has certain obligations. These would include following recommended treatment advice, and being under the regular care of a physician. Once a person has ceased working due to a disabling condition, that person should ensure that he or she consults the treatment provider regularly, and that recommended treatment advice is followed. This will reduce the likelihood of a potential denial based on a failure to follow recommended treatment advice or not being under the regular care of a physician. If you have not yet been seen by a specialist, and your condition remains symptomatic, discuss with your doctor the option of a referral to an expert (be it a physiatrist, rheumatologist, or chronic pain specialist). Waiting lists are long. Without having been seen by a specialist, the fact that you are at least on a waiting list to see the specialist will help negate a possible future defence by the insurer that you have not been appropriately treated. The same would apply to being referred to a pain management program.
    As part of the insurer’s assessment of the disability claim, the case manager will contact you to discuss your claim, and more importantly to interview you about your condition, your restrictions and limitations, the diagnosis, your job duties, medications you are taking, and very importantly, your activities of daily living. These interviews are conducted to explore your function, both inside and outside of an employment setting. The insurer is looking for discrepancies or inconsistencies. Coupled with these interviews, there may be surveillance conducted in an attempt to establish whether your reported restrictions and limitations are consistent with your actual function as may be seen in surveillance. When your condition is one of complex and chronic pain, and there is little “objective” evidence in the form of diagnostic imaging, the dreaded credibility factor comes into play. This means that if your reported restrictions and limitations are inconsistent with what is seen by (often circumstantial) surveillance, your credibility may be seriously affected to the extent that it may lead to a denial.

    Here's another question:

    What can someone making a disability claim do to try to make sure that their claim is sound and watertight?


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