Online Event

Questions about Private Insurance Disability Claim Denials?

Martin Willemse will be participating in PainBC’s live online “Ask the Expert” event on April 20, 2017  from 9:30a.m. to 11:30a.m.

Martin will be answering questions related to disability claim denials by private insurance companies including:

  • Long Term Disability (LTD)
  • Short Term Disability (STD)
  • Critical Illness
  • Chronic and Complex Pain

Martin will take questions in real time and his responses will be recorded online.  You can find out more about the online event and how you can participate HERE.

Can’t make the event? You are welcome to contact us anytime for a free consultation.

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Upcoming Event: Martin Willemse Attending ME/FM Society of BC AGM September 24, 2016

Martin Willemse has been invited to attend the Annual General Meeting of the Myalgic Encephalomyelitis and Fibromyalgia Society of BC (ME / FM Society of BC) to be held at BC Women’s Hospital on September 24, 2016 at 1:00 p.m. Mr. Willemse will be available to answer questions on issues related to insurance matters, such as denied disability claims.

Please see the link below for further details on the meeting: 

http://mefm.bc.ca/2016-annual-general-meeting/

Disability Insurance Claim Denials: The Insurer is not Always Right

When you are disabled due to an injury or an illness, the last thing you should have to deal with is a battle with an insurance company over the interpretation of complex contractual terms to get your benefits. A recent news story regarding a family man comes to mind. Mr. Glennie was a fit man in his mid-30s who suffered a cardiac arrest. He was placed on life support for four days and spent nearly a month in hospital. Following his release from hospital, he was disabled from his occupation as a mechanic because of ongoing issues with his left arm that arose following a surgical implant of a defibrillator. When he applied for critical illness coverage through his employment’s group coverage carrier, he was denied. The plan purported to treat “heart attacks” differently than “cardiac arrests.”

The insurance company took the position that, while the insured’s heart stopped, it was not caused by a “heart attack”. The insurer defined “heart attack” as the heart stopping due to a blockage. Since the insured’s heart stopped for an inexplicable reason and not due to a blockage, he was deemed not covered. However, the medical community would describe what occurred here as a heart attack.

Don’t Automatically Assume the Insurer’s Interpretation is Correct

We have seen similar situations to that experienced by Mr. Glennie. An insurer will often deny a claim based on its interpretation of the terms of the policy. Many people simply accept the insurer’s interpretation because, after all, they are the ones administering the policy, and they are assumed to know best. However, it is imperative to review the master policy that sets out the terms of the contract. If there is another, equally compelling interpretation that would cause benefits to be paid, that is the interpretation that should prevail.  Further, if there are two equally compelling interpretations, the legal concept of contra proferentem has been used as a tie breaker.

What is Contra Proferentum?

Contra proferentem means that where a term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording. In the insurance context, it’s the insurer who is responsible for drafting standard form insurance contracts. Courts acknowledge that people entering insurance contracts (including disability insurance contracts) have no negotiating power over the terms of these contracts. They accept the terms or they don’t get coverage. Courts also assume that the drafters of these documents are well aware of any limitations or ambiguities and should not be allowed to take unfair advantage of this knowledge. Similarly, if an insurer did not choose its words carefully to avoid misunderstandings, it should not be allowed to benefit from that lack of care.

So, if the normal rules of contract interpretation do not clarify which interpretation was intended by the parties, the courts may apply contra proferentem to break the tie. Some exceptions may apply if the dispute involves an argument over coverage between two insurance companies.

We have resolved many cases favourably for our clients where we have applied this legal concept.

In Mr. Glennie’s case, this legal concept was not tested as the day following the news coverage of his case, the insurance company decided to “make an exception” and pay the claim.

What to do if Your Disability Claim is Denied

When your insurance claim is denied, seek legal advice from a lawyer that has specific expertise in insurance matters. It may make the difference between getting paid or, getting nothing. If you have a question about a disability claim denial call us at 604-583-2200 for a free, no obligation consultation.

Was your disability claim denied?

Often people claim disability for disorders that play a very real part of their life but they are denied benefits by their insurance company.  In many cases this happens because proving such a disability exists is harder to do and it is decided that  there is a lack of medical evidence. Two commonly denied disability claims are for anxiety and depression.

Anxiety

Anxiety is a general term for several disorders that cause nervousness, fear, apprehension, and worrying. These disorders affect how we feel and behave, and they can manifest real physical symptoms. Mild anxiety is vague and unsettling, while severe anxiety can be extremely debilitating, having a serious impact on daily life.

People often experience a general state of worry or fear before confronting something challenging such as a test, examination, recital, or interview. These feelings are easily justified and considered normal. Anxiety is considered a problem when symptoms interfere with a person’s ability to sleep or otherwise function. Generally speaking, anxiety occurs when a reaction is out of proportion with what might be normally expected in a situation.

Depression

Depression is often much more than feeling sad or despondent. Symptoms often include loss of self-esteem, feelings of uselessness, hopelessness, excessive guilt, slowed thinking, forgetfulness, difficulty concentrating, difficulty making decisions, loss of interest in work, fatigue, mood swings, oversleeping or insomnia, thoughts of death, dying or suicide.

Depression is a medical condition that affects one’s thoughts, feelings, physical health and behaviours. For diagnostic purposes, a depressive episode must be experienced at a certain level of severity for a minimum duration of two weeks.

Factors that increase the risk of developing or triggering depression include:

  • Having relatives with depression
  • Having traumatic experiences
  • Experiencing stressful life events
  • Having few friends or other personal relationships
  • Abusing alcohol or drugs

Our disability claim lawyers have successfully resolved denied claims for both anxiety and depression by bringing forth the medical evidence required to prove the disability as defined under the policy.

Learn more about anxiety and depression here.

Offering Support to People Living with Depression

One of my clients commented to me how depression can be so isolating. And lonely. In the throes of depression, the mind and body can be immobilized. This can have the negative and unwanted side effect of alienating family, friends and co-workers. If you have someone in your life suffering from depression, it is important to attempt to stay connected. While people with depression often physically cut themselves off from others, in this digital age, there are ways to keep the ties.

While attempting to connect disabled clients suffering from psychiatric illnesses to resources and support groups I came across a website aptly called “The Mighty”. It contains inspiring real life stories from real people suffering from mental and psychiatric illnesses.

Recently, The Mighty reached out to its community and asked, in this digital age, what text they’d like to receive in the midst of depression. While text messages are not “treatment”, it can remind someone that they are loved and missed and not alone. Here are examples of texts that The Mighty’s community published that may inspire you to reach out to someone you know who is suffering from depression:

  1. I’ll give you time and I’ll be here when you’re ready. I promise.
  2. I’m beginning to understand how loud silence can be. Forgive me for not standing still enough to hear yours. I’m listening.
  3. I can’t begin to imagine what you’re going through, but know that I’m here for you.
  4. I’m so glad you’re here.
  5. You matter.

Read more on The Mighty.

 

News of Upcoming Events

September 30, 2015: Long Term Disability Insurance Seminar – Resident Doctors of BC

Kirk Wirsig and Martin Willemse, as counsel for the Resident Doctors of BC on insurance matters will be presenting a seminar to members of the Resident Doctors of BC on long term disability insurance coverage. Discussion topics will include what policy riders are available when purchasing an individual long term disability insurance policy, for example:

  • Own Occupation rider – a rider that insures against a disability from your own occupation for the lifetime of the policy, as opposed to the usual coverage which provides long term disability coverage for a numbers of years, often two, of your own occupation and then switches to coverage for long term disability from any other occupation after the first two years of own occupation coverage;
  • Future Income Option rider – a rider that allows the insured under a long term disability policy to increase the monthly benefit amount annually for a set number of years to a set maximum monthly benefit amount, without having to provide further proof of good health; and
  • Cost of Living Adjusted Benefit rider – a rider that provides for periodical increases in the monthly long term disability benefit amount based on rate changes in the Consumer Price Index and other factors.

October 28, 2015: Long Term Disability Seminar – BC Psychological Association

Martin Willemse and Kirk Wirsig have been invited to present a seminar on Long Term Disability claims at an Ethics Salon hosted by the BC Psychological Association. The seminar will focus on long term disability claims based on subjective conditions, such as mental health illnesses including major depression and anxiety disorders. The opinion of treatment providers, in this instance a psychologist treating a long term disability claimant suffering from a mental health illness, is often crucial to the claim. However, a treatment provider should be wary not to be seen as an advocate, as this will influence the weight a trier of fact may give to his or her opinion.

Martin Willemse has presented papers and power point presentations on these conditions at other conferences which can be viewed here:

 

Is my Insurance Company Delaying Approval of my Claim?

We often get this question from people who are off work due to an injury or illness and the insurance company is taking a long time to decide whether the application for benefits ought to be accepted.

To start, make sure that you complete the form within the time required under the policy; that the form is completed properly; and, if the insurer asks for additional information, obtain that information as soon as possible.

While most insurers do not deliberately delay the process, we have heard from frustrated callers complaining that the insurance company’s agents ask for information that has already been provided, do not return phone calls, and request answers to questions that have nothing to do with the claim.

The initial decision should only take a few weeks but we have seen this initial period drag on for many, many months. In circumstances where the insurance company denies the claim, the process takes even longer as claimants attempt to appeal the decision, sometimes through multiple rounds of appeal. During this timeframe, the disabled employee is without income, getting behind financially and under added stress in dealing with the insurance company. Even more concerning, your time to take legal action continues to tick away during this entire time. This means that if your latest appeal is denied after the limitation period to sue has run out, you will likely be barred from taking legal action against the insurance company.

If your claim has been denied and the insurance company invites you to appeal, it is time to call a disability lawyer.  When a disability claim is denied, we can help you decide whether it makes sense to pursue the appeal or look at your legal options.

2015 Disability Claims Management & Litigation Conference Summary

On May 27th and 28th, Kirk Wirsig co-chaired the 8th Edition of “Disability Claims: Management and Litigation”, a legal conference for lawyers and other insurance professionals, including human resource personnel and medical specialists. Both Kirk Wirsig and Martin Willemse were speakers at the conference.

Disability claims management is a complex area and these conferences aim to keep those working in this area up to date on medical research, case law and best practices in order to better serve those suffering with disabilities and to fairly resolve disputes. Read more

Medical Marijuana in BC

Case Commentary – GLESBY VS. MACMILLAN

A recent judgment of our Supreme Court of British Columbia illustrates just how far the debate has swung on the issue of marijuana as medicine.

Mitigation of Loss Through Medicinal Marijuana

The judgment of Gelsby v. MacMillan (March 4, 2014, BC Supreme Court) was a routine personal injury case in many respects.  The Plaintiff Jessica Glesby was injured in a motor vehicle accident, suffered various injuries, and went to trial on the issue of the “assessment of damages” (how much money would she receive for her injuries).  The arguments raised by both parties were for the most part not out of the ordinary, with the Defendant’s arguing that she was exaggerating her claim, and with the Plaintiff arguing that the accident and resulting injuries had a long-term and serious consequences for her life and career.

However, one aspect the evidence was certainly unique.  Among the arguments advanced by the Defendants was that the Plaintiff had “failed to mitigate”, meaning that she had failed to take all reasonable steps to ensure her recuperation from her injuries.  And one of the ways that she had allegedly failed to mitigate was by not acting on her Doctor’s advice to “use medical cannabis to manage her pain.”  She protested meanwhile that she “had reservations about the legality of the acquisition and use of cannabis, and, in any event, she is a committed and life-long abstainer from narcotics and drugs of all sorts.”

The judge in the end failed to accept the Defendant’s arguments in this regard, stating:  “I decline to find that the plaintiff failed to mitigate her losses by not taking medical cannabis.  Dr Hershler’s advice came after the end of what . . .I consider to be a reasonable recovery period.  In any event, I accept as sincere the plaintiff’s reservations about the acquisition and use of cannabis.”

A Changing Approach to Cannabis

Have we not come a long way in our treatment of medical cannabis?  Not so long ago the argument was being waged over whether marijuana had medical properties.  Courts were being asked to rule on whether cannabis could be a medicine.  Now, to our knowledge for the first time, the Court is being asked to find that a person has a duty to take cannabis as medicine, if that that is the recommendation of her physician.

Cultures change.  Medicines change.  And certainly our law has changed in its approach  to medical cannabis.

Retainer Agreement Photo

What is a Retainer Agreement?

Whenever you hire a lawyer, you will likely be asked to sign a retainer agreement. A retainer agreement is a contract between the client and law firm that tells you that the law firm will represent the client in pursuing a particular legal issue and how the client will pay a legal fee to the law firm for that service. Generally speaking, there are three types of contracts for fees:

  1. Hourly Rate Retainer Agreements;
  2. Flat Fee Retainer Agreements;
  3. and Contingency Fee Retainer Agreements.

Hourly Rate Retainer Agreements

Under an hourly rate agreement your lawyer will bill for the amount of time spent working for you. The number of hours a lawyer spends in pursuing a resolution to a legal issue is multiplied by an hourly rate to arrive at the legal fee. Hourly rates vary depending on the type of legal matter and the skill level of the lawyer you hire.

Flat Fee Retainer Agreements

A flat fee agreement sets out a fixed legal fee no matter how many (or how few) hours are expended in pursuing a resolution to a legal issue.

Contingency Fee Retainer Agreements

Under a contingency fee agreement the lawyer acts for a client in return for a percentage of a lump sum settlement or trial award. If no money is recovered, there is no legal fee to pay.

Always talk fees with your lawyer at the FIRST meeting. You should always make sure a fee agreement is made in writing so no dispute arises later.