Long Term Disability Cases: Steps Involved

There are usually two steps involved when long term disability benefits are denied: appeal or lawsuit.  Most long term disability lawyers recommend taking legal action, rather than the appeal route. This remains true for several reasons.  First an appeal is to the same company that denied the claim. The insurer has already made the decision, and probably will not change it.  Second, insurance companies control the appeal process. There is no independent decision maker who will objectively assess your case. Last and most important, the success rate for long term disability lawsuits is much higher then appeals.

For most people, the thought of a lawsuit may be intimidating. Most individuals who have been denied disability benefits have never been involved in a legal action, or even considered what is involved. People may have preconceptions about lawyers, legal fees, the court system, and insurance companies. This article is a brief summary regarding the steps involved when pursing a long term disability claim. For additional information feel free to contact Juzkiw Law for a free consultation.

Communications with a Long Term Disability Lawyer:

The majority of disability lawyers offer free consultations will provide general advice before being formally retained.  The retainer agreement is most circumstances are premised on a contingency fee basis, meaning that there are no fees or other charges until the claim is successfully resolved. When the case does settle, the fees are a fixed percentage of the benefits recovered. In the majority of cases usually 80% or more is recovered. Additional information on legal fee is available on the Juzkiw Law website.

Obtaining Your File:

One the first steps your lawyer will complete is the request of your LTD file. In the majority of case the insurer of the claimant will provide the file within 30 days of the initial request.

Reviewing the File:

Your Long Term Disability Lawyer should carefully review your LTD file before filing any documents with the court. It is important to note that there may be glaring errors in your file, more often then not subtle. Therefore, it pays to hire a strong LTD Lawyer with the knowledge, experience and drive to identify and exploit these errors as they can strengthen and eventually lead to a favorable outcome in your case

Issue of Statement of Claim:

We understand that it’s a difficult time after a denial without stable income.  Therefore, its of vital importance to establish your entitlement to CPP Disability Benefits, which is a step towards demonstrating your inability to work and to meet the test of having a complete inability to work to any occupation.  Also keep in mind, that our goal is to expedite a resolution in your matter which is the reason why we immediately issue a Statement of Claim on your denial upon receipt of your file from the insurer.

A statement of claim is a document that is issued with the court then served on the insurance company. It sets out the issues in a general way, and describes what the claim is for: payment of past disability benefits owed, interest on benefits owing, and a declaration that the insurance company reinstate payment of benefits. In some of the cases, claims will also be put forth for punitive, aggravated, and pain and suffering in an effort to punish the insurer for conduct detrimental to its insured and to compensate for the consequences of such conduct. The statement of claim must be issued within two years of the initial denial of benefits, but the strongest long term disability lawyers will issue and serve the claim as soon as possible.

Lawyers Hired by the Insurer:

After service of the statement of claim, the insurance company will retain a lawyer to defend the case. Often the lawyer will be “in house”, which means that they are employed directly by the insurer to defend any claims. These defense lawyers are savvy, hardworking, and proficient at what they do. They are familiar with the issues in your matter, and their primary job is to settle your claim for the least amount possible. It is therefore in your vital interest to retain a long term disability lawyer who has the same qualities to match or exceed the skills of the insurance’s company’s lawyer in order to secure compensation for recovery.

Document Production:

The insurer most likely at this point has already obtain the majority of your medical files, but there are always more clinical notes and records to obtain. Your lawyer will request and pay for updated medical information, employment, tax, CPP- disability and other records. Your records will then be organized, analyzed, and provided to the insurer’s defense lawyer on an ongoing basis.

Examinations for Discovery:

In the majority of cases the insurance company will agree to skip this step and go straight to mediation. But sometimes the insurer wants more information about your matter before making any attempts to resolve your matter.  An examination for discovery is an opportunity for the insurer’s lawyer to ask questions about your health, your employment, and why you can’t work. The insurer’s lawyer are almost always professional, polite and simply need more information before they can properly assess the claim. Prior to the Examination, we will prepare you thoroughly for the types of questions that are typically asked and various strategies required to give full and complete answers while avoid common traps.  Examination for discovery is not a cross examination for discovery. In fact, it is not uncommon that after an examination that the insurer’s lawyer once convinced will want to immediately settle your matter.  Other times a mediation will follow a few months after the discovery.

Medical Legal Reports:

Your long term disability claim will be strengthened by export opinion evidence in a medical legal report. If appropriate, your long term disability lawyer will retain one or more experts to review all of the medical records, meet with you and prepare a report. Your lawyer will pay this expert for the report as set out in the contingency fee retainer agreement (see “Fees” tab on our website”). Therefore, it is important to ask your long term disability lawyer who pays for disbursements including expert fees, in the unlikely event your matter fails to settle.

On other occasions the insurer will request that you see an expert of their choosing, but that usually only occurs if the case does not settle at mediation.

Mediation:

Mediation is a settlement meeting. The vast majority of cases, more than 90% settle at mediation. When the case settles, the lawsuit is over.

Pre-Trial and Trial

If your claim does not settle at mediation, that does not mean that you have to go to court. The next major step is pre-trial, where a judge will assist the parties involved to try to resolve your matter.  If your matter can’t be resolved at a pre-trial, the judge will ensure the case is ready for trial. Less than 1% of long term disability cases go to trial, but you are going to want a strong long term disability lawyer who is an effective advocate to represent you in the unlikely event it does proceed to trial.  In the event that it does proceed to trial, the likely outcome favors you the client for two reasons.  First, the statement of claim is issued against a big insurance corporation, and is much more presentable in front of a jury. Second, the issues that are in dispute is confined to the time period retroactive to when the first denial incurred up to the point of trial.  At trial, the use of expert medical opinion on your inability to work will be utilized for a favorable outcome.

Long term disability insurers are more likely to pay fair compensation when they know the individual is represented by a lawyer capable of taking the case to trial. So by retaining a strong disability lawyer, you are increasing your likelihood of a fair settlement for you and your family, while decreasing your chances of a trial.