1.      "A lack of objective medical evidence"

This reason for denial is not grounded in the insurance policy.  Very few disability insurance policies state that objective medical evidence is required for benefits to be provided to an LTD policyholder.  

Objective medical evidence is something that can be seen in an x-ray, scan, or in blood work.  It is some evidence that your physician can verify by some means other then through information provided by the patient.  Some legitimate medical disorders are incapable of being proven through objective medical evidence, these include most psychiatric disorders such as depression, anxiety disorder, post traumatic stress disorder, and pain based disability from medical conditions like chronic pain syndrome, fibromyalgia, and chronic fatigue syndrome.  The fact that these conditions cannot be objectively proven is a result of the limits of modern science, and should not reflect on the legitimacy of the disability.  

The insurers one could say are assuming that people who report symptoms that cause them to be diagnosed with subjective medical problems are being judged as guilty until proven innocent.  In other words, these people are assumed to be malingerers.  LTD insurers who routinely deny benefits to people for lack of objective medical evidence are making up an exclusion that is not actually contained in the policy.  We argue that denying a person who is legitimately suffering from a disability due to a lack of objective evidence means an insurer can be acting in bad faith, and are not honoring their policy.  

Disability insurance companies often deny legitimate disability claims on grounds that there is “no objective evidence of disability”. This reason can be expressed in several alternate ways. For example, that symptoms are “self-reported” or “subjective in nature”. However couched, the fundamental message is that the insurance company does not accept you are experiencing severe pain or fatigue because you cannot prove it objectively.

However, both pain and fatigue are purely subjective experiences. There is no x-ray, MRI, ECG, or any other diagnostic test that will show a severe migraine headache, or extreme pain in the lower back, or debilitating fatigue. There is no “pain-sensor” or “fatigue-test” which can prove or disprove that you are experiencing the symptoms of fibromyalgia or chronic fatigue syndrome.

If there is no means of proving you are experiencing pain or fatigue, does that mean it does not exist?  As the millions of individuals unfortunate enough to suffer from such terrible conditions such as fibromyalgia, chronic fatigue and pain syndrome, myofascial pain syndrome, and others can attest, these “subjective” conditions are very real and extremely disabling.

The majority of the medical community has accepted the above subjective disabilities as valid medical conditions.  Some experts believe the source is physical (i.e. a muscle or tissue disorder), and others believe the cause to be psychological in nature. However, there is little doubt amongst experts that subjective disabilities exist. There are numerous renowned doctors that specialize in the above conditions and many pharmaceutical companies are actively researching possible treatments.  The American Centers for Disease Controls and Prevention identifies chronic fatigue syndrome and fibromyalgia as valid medical conditions.

From a legal perspective, courts across Canada have also accepted that “subjective” disabilities can prevent an individual from being able to work. For example, in Deyonge v. Liberty Mutual, an Ontario court in 2003 accepted that a marketing representative was disabled by fibromyalgia. In the 2001 Alberta case Materi v. Confederation Life, the Appellate Court considered the issue of whether a person’s irritable bowel syndrome left them totally disabled despite a lack of objective medical evidence. The court concluded it was an error to say that such a condition had to be proven by objective evidence. 

As the medical community accepts the existence and validity of “subjective” disabilities and as Canadian courts accept that such conditions can be extremely disabling, it is both incorrect and unreasonable for an insurance company to deny a disability claim solely on the grounds of a lack of objective evidence.

If your disability claim has been denied on the grounds of no objective evidence, contact MacGillivray Law Office regarding your legal options. A court of law may strongly disagree with the insurance company’s position.  For further information call our firm during business hours at 1-888-434-0398 or email us now.

2.  "change in definition of total disability from own occupation to any occupation"

Most group LTD policies contain a “Change of Definition” clause. This clause states that after a period of time (commonly two years), the definition of the term “disability” changes such that you no longer qualify for benefits if you are able to perform “any occupation” for which you are reasonably fitted by way of your training, education and experience.

Take the hypothetical example of John the Mechanic. John has been a mechanic for 20 years when he begins to develop Rheumatoid Arthritis in both his hands. John struggles to perform his job but eventually he is unable to repair cars any further and submits a disability claim to the group disability insurance company.  After reviewing the medical evidence, the insurance company accepts John’s disability claim and commences paying monthly benefits.  However, after two years the insurance company cancels John’s benefits citing the Change of Definition Clause.  While they agreed that John could no longer work as a mechanic, the insurance company felt that John could perform the job of a parking lot attendant.

Can the insurance company rely upon the Change of Definition clause to terminate John’s benefit? 

Firstly, they would have to prove that John is reasonably suited to work as a parking lot attendant because of his training, education, and experience.  This is not the same test as proving that John is capable of being a parking lot attendant. A doctor or engineer could likely also be a parking lot attendant but that doesn’t mean they are reasonably suited for that occupation. As one court states, the alternative occupation must be “reasonably comparable” to the insured’s former occupation in “status and reward”.

In this example, I believe John would have a strong legal argument that the job of a parking lot attendant is significantly lower in both status and pay than that of an experienced mechanic.

The insurance company would also have to prove that John’s Rheumatoid Arthritis does not prevent him from being able to perform the tasks of a parking lot attendant. If John’s condition has progressed such that he is unable to use his hands, he would have a strong legal argument that he cannot perform the exchange of money or tickets and thus could not perform the job.

If your group LTD insurance company has terminated your disability claim citing the Change of Definition clause, you should know that a court of law may strongly disagree with the insurance company’s position. For further information call our firm during business hours at 1-888-434-0398 or email us now.

3.  "The results of our Surveillance..."

Surveillance is a common tool used by disability insurance companies during the adjudication of a disability claim. The insurance company will hire an investigative firm to secretly take photos and video footage of a claimant and observe a claimant’s activities. If the insurance company believes the surveillance proves the claimant is capable of working, then they will likely deny or terminate the disability claim.

Is activity noted on surveillance sufficient to justify the denial or termination of a disability claim? Certainly the answer would depend on the type, frequency, and duration of the activity, as well as the nature of the claimant’s disability. However, surveillance often has only limited relevance to the question of whether a claimant is truly disabled.

Firstly, surveillance is usually conducted over a relatively brief period of time – most commonly 3 or 4 consecutive days. If a disabled person is shown to be active during that time, it does not necessarily mean that the person is capable of being active all the time. Many disabilities are of fluctuating severity such that people have “good days and bad days”.

Secondly, activities shown on surveillance are usually brief in nature and not indicative of whether is someone is capable of working. Surveillance showing a person walking their dog in the morning, shopping for groceries, or mowing the lawn is usually not sufficient to prove that they are capable of working 8 hours per day at a full-time job. Also, the surveillance will not show what is happening inside a claimant’s home after they return from their activity – many individuals will be completely exhausted and unable to do anything else but rest.

While surveillance is often not relevant to the issue of whether a person is disabled, it can be relevant to the issue of a claimant’s credibility. If a claimant tells their case manager that their condition is so severe such that they are always bed-ridden, surveillance showing the claimant active outside their home will be damaging to the claimant’s credibility. Likewise, if a claimant states that they are unable to drive a car, video footage proving otherwise will be damaging to the claimant’s credibility. If the insurance company can establish a claimant is not credible, it will have a negative impact upon a claimant’s chance of success at a trial.

If your short-term disability (STD) claim or long-term disability (LTD) claim has been denied on the grounds of surveillance evidence, do not lose hope. A court of law may strongly disagree with an insurance company’s interpretation of surveillance data. Also, in some cases, the investigator may have obtained footage of the incorrect person.   For further information call our firm during business hours at 1-888-434-0398 or email us now.

4.  "No restrictions or limitations"

A common reason that a disability insurance company will cite to deny a long-term disability claim is that there are no “restrictions or limitations”. Essentially, the disability case manager has reached the conclusion that the medical condition the claimant is suffering from and the symptoms the claimant is experiencing are not severe enough that they would prevent the claimant from being able to work in their own job.

A “restriction” refers to tasks or actions which a person is unable to do as a result of a medical condition. For example, a person who suffers from a severely herniated disc may be restricted from bending, pulling, pushing or lifting over 15 pounds. A person with vision problems may be restricted from driving.

A “limitation” refers to a task or action which a person can only do for a certain period of time as a result of their symptoms. For example, a person suffering from musculoskeletal pain or fibromyalgia may be limited from remaining stationary in a sitting or standing position for more than 10 minutes. A person suffering from chronic fatigue syndrome may be limited from doing any type of strenuous physical activity for more than a very brief amount of time.

Thus, when the disability case manager finds no restrictions or limitations, he or she has made the judgment that the claimant is totally capable of performing his or her job duties, even if it is established without doubt that the claimant suffers from a sickness or has suffered an injury. However, the disability insurance company’s position may be unfounded and incorrect from a legal standpoint.

Firstly, the disability case manager may have unfairly underestimated or discounted the severity of the claimant’s medical condition. A disability insurance company will usually rely upon the opinion of internal medical staff to decide on restrictions and limitations. However, these professionals only conduct a paper-review and do not examine or even speak with the claimant. A court of law will most likely prefer the opinion of the claimant’s own doctors who have examined and treated the claimant.

Secondly, the disability adjudicator may have an inaccurate or incomplete understanding of the claimant’s job duties and their physical and mental requirements. This can result from wrong information provided by the HR department of the claimant’s employer - often when the employer is not supportive of the disability claimant’s inability to work.

If your short-term or long-term disability claim has been denied on grounds of “no restrictions or limitations”, contact MacGillivray Injury and Insurance Law for a free consultation about your case. A court of law may strongly disagree with the insurance company’s position.   For further information call our firm during business hours at 1-888-434-0398 or email us now.