Frequently Asked Questions
Find answers to some of the most commonly asked questions for disability insurance, medical malpractice, and personal injury claims.
Long-Term Disability Insurance Claims
“Total Disability” or “Totally Disabled” is often how insurance policies describe the test a person needs to meet in order to be eligible for long term disability benefits. While every policy will define these terms in its own way, there are some common features that we see frequently.
Most policies, particularly group insurance policies, will have two different definitions for these terms, and the length of time you have been off work will determine which definition applies. For the first period following your last day at work (often somewhere between 12 and 24 months), you will typically need to show that you are unable to do most of the duties of your own occupation in order to meet the definition of “Total Disability”. This is commonly referred to as the “own occupation” phase of a claim.
After the “own occupation” phase, the definition of “Total Disability” changes, and you will need to show that you are unable to do any occupation that you are, or can reasonably become, qualified for. This is commonly referred to as the “any occupation” phase of a claim.
Most insurance policies will have two different definitions for what it means to be “Totally Disabled”. For the first part of a claim (usually somewhere between 12 and 24 months) you are considered disabled if you cannon do your own job due to an illness or injury.
After that, you are considered Totally Disabled only if you can show that you are unable to do “any occupation” for which you have the experience and/or training, or you could reasonably get the necessary experience and/or training. In other words, if you are unable to do your previous occupation, but could do some other occupation that is maybe less physical, or less stressful, you may not be considered “Totally Disabled” under your policy.
Many of the terminations we see occur at the time of the definition change from “own occupation” to “any occupation”. If you do not think your insurer is correct, or you have medical evidence to support an inability to do any occupation, you may wish to contact a lawyer for an assessment of your claim.
In most cases, the answer is yes. Most insurance policies will have requirements that you attend any medical examinations or rehabilitation programs that the insurer requests in order to continue receiving long term disability benefits. That said, there are limits on what the insurer can request—if they want you to attend a medical examination, it generally has to be with a doctor whose speciality relates to the cause of your disability and if they want you to attend a rehabilitation program, there has to be medical evidence that you are capable of attending.
If you are unsure if what your insurer is asking is reasonable, contact a lawyer for an opinion.
Generally speaking, the courts have found that insurance companies can conduct surveillance on people who have applied for or are receiving long term disability benefits in order to assess the validity of their claims. It is therefore important that you are honest with your insurer when filing your claim or providing them with information as they may try to show that what you are reporting does not align with what they see you doing during the course of surveillance.
If you feel that surveillance being conducted is putting you in danger, trespassing on your property, invading your privacy or breaking the law, you can report it to police. If you think that your insurer is surveilling you, and are not sure if what they are doing is reasonable, you may wish to contact a lawyer for an opinion or advice.
It depends. Most insurance policies will stipulate whether benefits are taxable or not– you can often find this information in the “Schedule of Benefits” portion at the beginning of the policy, or in a booklet or pamphlet about your benefits that your employer likely has or gave you.
Generally speaking, where the premiums for long term disability coverage are paid in whole or in part by your employer, any benefits you received during a period of long term disability would be considered taxable and your insurer will withhold the appropriate amount of taxes and remit those directly to CRA. If you pay the premiums for your long term disability coverage yourself, then the benefits would likely be non-taxable.
CPP Disability is a monthly benefit administered through Service Canada that you may be eligible for if you have a mental or physical disability that prevents you doing any type of substantially gainful work. In order to qualify for CPP Disability benefits you have to have made sufficient contributions to CPP in the past and have a severe and prolonged disability that prevents you from working.
Your long term disability insurance provider may ask you to apply for CPP Disability benefits. Information about the program, and a link to the application can be found here: https://www.canada.ca/en/services/benefits/publicpensions/cpp/cpp-disability-benefit.html
Almost all insurers have internal appeals processes where you can ask the insurer to reconsider their decision and provide further documentation in support of your claim. The letter from your insurer stating that your benefits have been terminated or denied should give you information on how to appeal, and the time limits for doing so.
Generally speaking, there is no requirement that you appeal your insurer’s decision using their internal processes and unless there is brand new medical evidence that the insurer has not yet seen, it is rare that insurers will overturn their initial decision after an appeal is made.
If your benefits have been terminated, or your application for benefits has been denied, and you have medical support for being off work, you should consider getting a legal opinion from a lawyer experienced in this area as to what options you might have.
While some insurers have multiple levels of appeals you can try, in most cases the only real option for pursuing long term disability benefits once they have been denied or terminated is to initiate a law suit against the insurance company. If you believe you have medical support for continued benefits, you should contact an experienced insurance dispute lawyer for a consultation and evaluation of your claim.
If your long term disability benefits have been denied or terminated, you may want to contact an experience lawyer to see what options you might have before initiating an appeal. In many cases, the only option is to sue the insurance company for failing to pay benefits and an experienced lawyer can help you determine if that is the right option for you.
At Tapper Cuddy LLP, we provide free consultation services where we will review your matter and provide documentation, if necessary to determine if a law suit is the right option for you. If you do choose to file a law suit against your insurer, in many cases we can enter into a contingency fee agreement where we agree not to charge you for any time we spend on your file unless we are able to recover funds for you from your insurer. If we are not able to recover anything for you, you would just be responsible for reimbursing any expenses we had covered, not our time. Contact us today for a free consultation and review of your claim.
Medical Malpractice
Medical malpractice claims refer to lawsuits brought against health care professionals, such as doctors, nurses and hospitals, where substandard medical care was provided that resulted in preventable injuries. It is important to remember that not all adverse outcomes from medical care are the result of medical malpractice. Some complications and poor outcomes are simply unavoidable as there is never a guarantee of a perfect outcome from medical care, even if the treatment appears to be routine.
However, every year, a significant number of preventable adverse medical events occur in Canada that may involve substandard care, or negligence, by health care professionals. These situations may be suitable for pursuing a medical malpractice lawsuit.
Medical malpractice is a complex and challenging area of law. The success of any malpractice claim is dependent on the underlying merits of the case and the experience of the lawyer assisting on the claim.
There are many different types of medical malpractice claims, but no matter the type of claim, there are three essential components that must be established that are common to all:
- Did the medical professional meet the standard of care expected of them in the circumstances? This is often referred to as whether the medical professional was negligent in the care provided.
- If the person did not meet the standard of care expected and was negligent, did this cause actual harm or injury to the patient? This is referred to in the legal realm as
- Lastly, what was the actual harm or injury caused to the patient. It is necessary to establish what the damages are for the claim.
There are many different types of cases that can result in a medical malpractice claim. Some of the more typical cases include:
- Diagnosis Error. A diagnosis error or misdiagnosis may occur as a result of a failure by a doctor, nurse or other health care practitioner to properly recognize a patient’s symptoms, order appropriate tests, or diagnose a patient’s condition or disease. Timeliness in making a proper diagnosis may also be a significant factor for a patient’s wellbeing.
- Emergency Room Errors. Errors in hospital emergency rooms may occur as a result of a misdiagnosis, delayed diagnosis, a mismanagement or failure to obtain timely tests, or a failure to consult with appropriate specialists. Frequently, an emergency room error can result in an improper discharge of a patient home or a lack of timely care leading to greater complications and injury.
- Surgical Errors. Every time a person undergoes a surgical operation at a hospital or clinic, under the care or a doctor or nurse, there are risks of surgical and medical malpractice. Surgical errors may occur during the pre-operative care, during the course of the surgery, or during post-operative care. They sometimes involve the care and treatment of a post-operative infection that may develop.
- Medication Errors. Medication errors can result where the wrong medication or the wrong dosage of a medication is prescribed either due to an erroneous diagnosis, misinterpretation of orders, or an error by a doctor, pharmacist or pharmacy.
- Informed Consent. Informed consent is the requirement that a doctor explain to a patient the nature of a medical procedure or treatment and all special, material or unusual risks or complications associated with it prior to proceeding with the procedure or treatment. In some instances, a doctor is also required to discuss any alternative treatments reasonably available for the patient.
- Birth Injury and Birth Trauma. Unfortunately, every year children are born suffering from serious permanent neurological or intellectual problems. Often these injuries could have been prevented with appropriate monitoring, intervention, diagnosis or treatment by a doctor, nurse or other health care provider.
As in every jurisdiction in Canada, there are statues of limitations in which to commence a medical malpractice lawsuit.
In Manitoba, a medical malpractice claim must be filed in Court within two years after the date when the medical services or procedures at issue ended.
There is a process to apply to extend the limitation period where the party can demonstrate that it did not have all of the material facts necessary to know that there was a claim. However the rules concerning such extensions can be very strict.
For persons under disability, which includes persons under the age of 18 (minors), the above two year limitation period is suspended until the disability ends or the person reaches 18 years of age. This means there can be a much longer period in which to commence a birth injury claim or other claim for a child. However, there is a provision in Manitoba where a prospective defendant can give notice to invoke a two year limitation period from the time when such a notice is given.
Personal Injury
Of course, you need to look after your health first. Make sure you immediately seek medical advice on your injury. As soon as you can, let the person or company you think may be responsible know about your injury. This is important as it establishes a timeline of the incident and allows for a timely investigation of the situation.
Not without consulting a lawyer first. In some instances, a business would prefer to keep a customer happy and provide a quick resolution to an accident that resulted in very minor injuries. In others, they may attempt to buy their way out of a claim early and inexpensively even before the extent of your injuries is fully understood. In either case, they will ask you to sign a release meaning that you cannot make a claim against them at a later date for the same incident, even if your injuries turn out to be more significant than originally thought.
The adjuster is just doing their job in investigating the incident. That said, we do not recommend you meet with an adjuster without a lawyer. We also recommend you not sign any statement unless you have had a reasonable chance to review it first. Mistakes at this stage can become problems later on.
Yes. You are able to seek compensation for any losses (physical, mental or financial) that are reasonably related to the incident. In some cases, while you are able to rejoin the work force, you have done so in a lesser role and for less money. You may be able to recover for this as well.
