Disability Insurance Denial – Fees and Strategy
It comes as a shock to most people: you are unable to work, you have been paying the disability insurance company regularly and on time (otherwise they would have cut off your coverage), then you get a letter from them saying that they have simply denied the claim. Sometimes a doctor that they hand-selected and hired said you weren’t entitled anymore and other times you are completely in the dark about the medical reasons for denial. Sometimes these things happens despite the opinion of your doctor that you are not able to work, sometimes it defies common sense, and, in my recent experience, sometimes it defies any basic element of compassion and humanity.
A flood of emotion and worry comes over you – how am I going to pay for my house/apartment, how am I going to pay my bills, what am I going to tell my spouse and kids and how are they going to view me, what do I do? Along with that flood of worry comes anger at the insurer whose decision makes no sense at all to you.
You call the adjuster and they say that the decision has been made, although you can always appeal. They say that they are doing their job and the decision isn’t all theirs and there is nothing that they can do. Your finances are becoming tighter by the day, your emotions are becoming more strained, and you wonder what the next step should be.
Do you give up? Do you draft the appeal? Do you hire a lawyer? If you hire a lawyer, how do you know if you can trust them and is there any choice about your agreement with them?
If you are reading this and you are in this position, then you have my very sincere sympathies. You are now entering a routinized system where the insurers, many lawyers, and ome health-care professionals are engaged in a calculus on each file and, to them, you are just another file that they can polish off and take off their desk before clocking out.
When I entered this profession back in 2002, my mentor explained to me that I was going to see some things that were going to shock and disgust me in how people were treated in this industry and that has unfortunately been true. However, I feel as though things have intensified more recently and you are seeing insurers taking horrifying positions more recently. I am not exaggerating that I have come home shell shocked and quite emotional a number of times in the last year at some of the decisions taken and held to by insurers. The Insurer’s newer approach to insured’s, injured and disabled people has been striking and has largely displaced a more cooperative and conciliatory approach that had been taken previously and any lawyer that you hire must be prepared to remain steadfast and resolute on your behalf in the face of it.
My first piece of advice to you is that you should not give up if you are unable to work. I understand how big the hill feels – we live in an era where many companies have more money than countries, the insurers that you are up against can be billion dollar companies and that can be daunting. To some extent the Courts are the last line of defence for individuals against companies – and, no matter what you may see about some lawyers on TV or in the newspapers, the vast majority are providing a valuable service in defence of our society. The vast majority value their reputation and their soul. There is a remedy at the end of this process and you should not be made to feel otherwise by large corporate interests.
Should you appeal? That very much depends on the situation. In some cases, it is entirely appropriate to appeal – and if you can get your benefits reinstated without needing to pay a lawyer or without needing to pay too much to a lawyer, then all the better. However, you need to carefully consider whether there is much point (ie: if they have made a formal decision based on the evidence and there is no additional evidence), or if you may say something in your appeal that could be used against you by the insurer.
Hiring a lawyer is an option as well. Talking to a lawyer and considering your options is never a bad thing and, in most cases, can be done for free as a “free consultation”. When you are talking to a lawyer consider whether the person that you are talking to is the right lawyer for you, whether their strategy is in line with your own and whether the fee structure makes sense. Ideally, you want a lawyer that you are personally comfortable with as a person and who you would be comfortable working with. If the lawyer is principally discussing a “lump-out” of your disability benefits (a full and final settlement where you receive a set amount of benefits to end your claim) then you need to think about whether that is what you want. In some cases, that can be good for the client – but in others, ie: a serious and prolonged disability for a young person, that may not be appropriate.
If the lawyer is retained on a contingency basis (where he receives a percentage of your recovery) then you may be concerned that there may be more incentive for the lawyer to obtain a lump out than a reinstatement. While lawyers are meant to uphold their ethical duty no matter such considerations, you may wish to speak with the lawyer about a deferred fee agreement or other such agreement where the lawyer’s interests are more in line with your own.
Reinstatement is possible and appropriate in many cases. However, lump outs can often be the appropriate option as well. There are many things to consider in determining which is appropriate and legal advice from a disability insurance denial lawyer is a very prudent decision.
Steven Polak is an injury and disability denial lawyer practicing primarily in Toronto and Durham Region (Pickering and Whitby). Steven has served as a director on York Region’s branch of the Canadian Mental Health Association.
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