The British Columbia Supreme Court has released a decision that is notable for a large award against insurer Desjardins for its improper handling of a Long Term Disability claim.
The plaintiff, Mr. Dennis Greig, suffered an injury in 2011 and a further injury in 2014. He applied for Long Term Disability Benefits. Desjardins, as insurance plan administrator, initially accepted his application for Long Term Disability Benefits. Mr. Greig later attempted to return to work in a rehabilitation program run by Desjardins but Mr. Greig struggled with the rehabilitation program and provided Desjardins with medical information setting out concerns with the program. Desjardins ignored this medical information and demanded that Mr. Greig return to work on a part-time basis, despite evidence that Mr. Greig’s medical symptoms remained as disabling as ever. Desjardins was also demanding continuous proof that he was still disabled at his own expense, even though they knew that he could no longer make his mortgage payments and was trying to sell his house. Facing these ongoing hardships, Mr. Greig provided medical information to Desjardins speaking to growing mental health issues. The Court found that Desjardins ignored this aspect of the claim.
Eventually, Desjardins terminated Mr. Greig’s entitlement to Long Term Disability. The Court, however, found that Desjardins did not have medical information that supported their decision to terminate his entitlement to benefits. Mr. Greig’s lawyers later submitted an internal appeal to Desjardins but the Court noted that Desjardins ignored the appeal and did not respond to any efforts to re-establish his entitlement to LTD.
Desjardins’ actions had awful consequences for Mr. Greig and his family. In the absence of Long Term Disability Benefits and as he continued to struggle with disability, he declared bankruptcy and was not able to maintain the family farm. Mr. Greig was eventually diagnosed with Depression and his family were even homeless for a six-week period.
Justice Young of the British Columbia Supreme Court found that Desjardins’ actions were in breach of the insurance policy and failed to meet the insurer’s obligation of good faith in administering a disability benefit policy. Beyond liability for the disability benefits themselves, the Court found that Desjardins was additionally liable to Mr. Greig in the amount of $50,000 in aggravated damages, and an additional $200,000 in punitive damages for the bad faith they had shown in administering the claim.
The Greig decision is a reminder that insurers have a great deal of power over people who need disability benefits, and are expected to use that power responsibly. If they fail to do so, Courts may take a hard line against insurance companies for their failure to properly administer disability claims and make them pay.
If you are concerned that your insurer is not handling your claim properly, Jewitt McLuckie & Associates’ LTD experts can fight to get you the benefits you worked for. You can schedule a consultation by calling 613-594-5100 – we will be happy to see how we can help.
Image credit: “Aspen Grove, British Columbia, Canada” by Krusty Da Clown via Flickr under public domain
Three recent Social Security Tribunal decisions illustrate the significant role union representatives can play to help workers with disabilities access their Canada Pension Plan Disability Benefits.
Jewitt McLuckie & Associates recently received three decisions from the Social Security Tribunal. In each of these matters, we presented evidence from the appellants’ union speaking to the union’s substantial but ultimately unsuccessful attempts to the have the appellant accommodated. In each of the decisions, the Tribunal noted the persuasiveness of the union representative’s evidence.
For example, in K.D. v. Minister of Employment and Social Development, the adjudicator highlighted the importance of the union representative’s evidence as follows:
Her testimony persuaded me that the Claimant could not perform any
substantially gainful work, not merely his usual job…Accordingly, I am
satisfied that Ms. Moore has offered real world evidence that the Claimant
was not able to work in the competitive workforce due to his medical
conditions.
Indeed, the adjudicator specifically noted that the union representative’s evidence was more compelling than the medical evidence presented by the appellant. This suggests that evidence demonstrating a union’s substantial but ultimately unsuccessful efforts to have a member accommodated in their workplace can be a valuable part of establishing entitlement to the Canada Pension Plan Disability Pension.
Detailed evidence regarding the employer’s and union’s efforts in accommodating or finding alternative work for the Appellants was given substantial weight in all three decisions. In D.M. v. Minister of Employment and Social Development, the adjudicator relied on the union representative’s evidence to conclude that:
…despite the breadth of the employer’s network and their sophisticated
program for assisting disabled employees, it became clear that he was not
an appropriate candidate for accommodation. Given his restrictions and
limitations…I am satisfied that the Claimant does not have the ability to function
in a vocational setting despite his young age.
The third of these decisions, J.M. v. Minister of Employment and Social Development, demonstrates the impact that a union representative’s evidence can have in a particularly complex case. In J.M., the minimum qualifying period had passed in 2011, while the appeal was being heard in 2019. This meant the Appellant had to establish she met the statutory “severe and prolonged” standard of disability as of 2011 and continuously thereafter. The length of time that had elapsed was a substantial challenge in this case. However, the union representative’s thorough evidence about the union’s extensive but ultimately unsuccessful efforts to have the member accommodated played a substantial role in satisfying the Tribunal that the Appellant was entitled to Canada Pension Plan disability benefits. In this regard, the adjudicator explained that this was a case where the subjective evidence was sufficient to overcome the lack of objective medical evidence supporting entitlement. He explained that this was in part due to the union representative’s persuasive evidence speaking to the appellant’s extensive and dedicated efforts to remain at work and ultimate inability to do so due to her medical restrictions and limitations.
These three decisions demonstrate that unions may be well placed to provide valuable evidence re disability benefit entitlement at the Social Security Tribunal. This can be done by live testimony or by affidavit evidence. These cases also suggest that workers appealing the denial of their CPP Disability Pension to the Social Security Tribunal can benefit by presenting evidence of their efforts to return to active employment.
The lawyers at Jewitt McLuckie & Associates have extensive experience helping clients who have been denied the CPP Disability Pension as well as other disability benefits. If you have been denied disability benefits and require assistance with your matter, please contact Jewitt McLuckie & Associates at (613) 594-5100.
The appellants in K.D., D.M., and J.M. were each represented by Randy Slepchik.
Article by Ramona Kapoor, student-at-law.
Image credit: “hand in hand” by Tamaar via Flickr under Creative Commons licence
Randy Slepchik had the chance to speak with CBC Morning Live about the importance of collaboration in the disability accommodation process and how disability accommodation is part of creating a more just society:
Discussion begins around the 2:20 mark: