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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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.

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.

Mediation Chairs

Mediation of Insurance Denial Claims

Mediation is a voluntary process, to which both parties agree. A mediator is appointed to hear the claim. The mediator is a neutral person assigned to help the two sides reach a solution that works for both. Usually a mediation takes place in a boardroom at a neutral location. The setting is usually casual in order to relax both sides to allow for easier communication.

A mediation is conducted on a “without prejudice’ basis. This means that whatever is said at the mediation cannot be used against you if the matter were to proceed to trial. This rule encourages both parties to speak more freely.

The mediator will manage both parties to ensure that each has an opportunity to speak and listen to all the issues. The mediator may help clarify misunderstandings and make discussion of the issues less stressful.

The mediator does not “decide” or “rule” on any issues and cannot force a settlement.

Mediation only works if both parties are willing to resolve their dispute.

If one party refuses to compromise and refuses to listen then the mediation will fail.