12th Annual Managing and Litigating Disability Insurance Claims

The number of mental health and workplace stress claims has been rising dramatically in Canada and the cost to employers is enormous. Researchers from the Centre for Addiction and Mental Health have calculated the actual cost of mental health leave to be double that for a physical illness. The World Health Organization identifies depression as the leading cause of disability and a leading contributor to the global burden of disease. The problem continues to grow as well: depression will be the highest ranked cause of disease burden in developed countries by the year 2020.

Mental health injuries clearly have major consequences for Canadian organizations and their employees. It is vital for anyone working in the disability insurance field to understand mental health injuries, how to objectively assess and quantify them, and how to effectively treat and rehabilitate them in order to effectively respond to the enormous challenge posed by these claims.

• Understanding the challenges faced: What mental health issues are leading to disability claims?
  • How can mental illnesses arise?
  • How can causation be established?
• Unraveling the complexities of the interactions between the physical and the psychological
  • Properly classifying injuries with both physical and psychological components
  • Psychological symptoms that can result from head injuries or changes in brain chemistry
  • Aggravation of physical symptoms due to mental health
• Properly evaluating workplace stress and other developing mental health injuries
  • How are these injuries viewed by the medical community?
  • Exploring options for treatment
• Gathering the medical evidence you need to win your case
  • Selecting the right medical expert to address the type of injury: who can help you and how?
  • Psychiatrist vs. psychologist: exploring the differences between the specialties to determine when you should use one or the other, or both
  • Evaluating your medical reports: what separates an effective report from an ineffective one?
  • Techniques and strategies to ensure you can get the most from your expert reports
• Effectively investigating a mental disability claim: how much evidence is required to support a finding of a mental health disability?
• Properly utilizing objective measures of subjective injuries: how can you quantify mental injuries?
  • When should you utilize psychological and psychometric testing
  • Can a mental disability be faked? How can a claimant manipulate the results of a mental health examination and techniques to guard against it
• Identifying potential problems: what you can do screen for possible mental health injuries or vulnerabilities in your clients/insureds
• Best practices for the claims handling process
  • Due diligence – gathering evidence and documentation and performing investigations at the outset of a claim
  • Factors to consider to determine optimal timing for assessments
  • Marshaling the available medical evidence to seek the most effective treatment/rehabilitation options
  • Monitoring compliance by the insured
    
    

Chronic pain/fibromyalgia disorders are amongst the most difficult claims to diagnose and assess due to the highly subjective and “invisible” nature of the injuries. In this session, hear directly from the experts on how to best investigate, treat, and litigate these claims.

• Properly utilizing your experts to diagnose chronic pain
  • How do medical experts determine the existence and severity of the disability?
  • Understanding diseases/mechanisms which cause pain from a physical, neurologic, and psychiatric perspective
  • Clinical conditions as currently diagnosed: what are the symptoms and how is it evidenced?
  • Selecting the right expert to diagnose your chronic pain case
  • Alternative diagnoses for chronic pain and when they can be applied
• Presenting objective evidence of subjective pain
  • Exploring the evaluations available and determining when they should be used
• Identifying common errors made in invisible injury assessments
  • What injuries are overdiagnosed or ignored?
  • Dealing with an insufficient medical history
  • Critiquing reports by using differential diagnoses
• Is this condition “real”? Effectively testing the validity and credibility of the claim
  • Questioning your client/insured: what do you need to ask to help you assess the extent and validity of the injury?
  • Utilizing medical records from treating practitioners to establish or challenge the existence of chronic pain
  • Best practices for surveillance: why it is so important and how can you ensure it will be relevant and admissible?
• Exploring the effectiveness of common policy definitions and exclusions
  • Exclusions for pre-existing conditions
• Treatment options – rehabilitation/palliative treatment
  • What is the duty for an insured to seek treatment?
  • Seeking out chronic pain specialists: when is it appropriate to consider a specialized chronic pain program and whether the care/treatment from pain doctors will be effective
• Handling returns to work following temporary disability
  • Best practices to facilitate the transition back to work
• Strategies for both plaintiff and defence counsel on how to persuasively present evidence of chronic pain and other invisible injuries
  

Claims for bad faith and aggravated damages are rising and they pose serious risks to an insurer. Potential pitfalls exist at all stages of the claims handling process and it is more important than ever to be vigilant against all types of conduct that could lead to additional damage awards. Conversely, the increase in misrepresentation and fraud cases has lead to rising insurance costs and is a growing concern for the industry. The cost consequences of bad faith can be enormous and it is crucial to be aware of the latest developments and trends to properly manage your disability claims.

• Instituting best practices for claims handling to avoid punitive and aggravated damages
• When should a bad faith claim be pursued?
  • Reviewing the available remedies and identifying behaviours that could lead to a finding of bad faith
  • Emerging causes of action and how they have been handled by the courts
• Proven strategies for oral and documentary discoveries in bad faith claims
  • Drafting your pleadings and discovery questions to obtain the documents and information you need to build a bad faith claim
  • Establishing the limitations for production of documents and information
  • How to respond to discovery requests
  • What information is protected by privilege?
  • Proactively handling the “smoking gun” documents in the claims file
• Legal definitions of “malingering” and “misrepresentation”
• Knowing when to pursue a fraud claim: differentiating between actual fraud/malingering and honest errors and innocent misrepresentations
• Obtaining evidence of fraud: strategies for examinations for discovery and surveillance
  

Social media has transformed how many industries operate and disability insurance is no different. Social media sites have become a cheap and effective way for insurers to investigate claims. Conversely, it has become a potential minefield for plaintiffs and their lawyers. The case law is constantly evolving, with new cases setting new standards on the scope of admissible evidence, and the steps that must be taken to ensure admissibility. Learn how to plan ahead to maximize the effectiveness of social media evidence.

• Reducing your investigation costs: how social media can provide a low-cost method for investigating and monitoring claims
• Analyzing cross-Canada case law
  • What have adjudicators ordered to be produced?
  • How is relevance to a claim established?
• Developing an effective strategy to ensure social media can benefit your case
  • Establishing the groundwork during claims handling and discovery to ensure you can win a motion for preservation and production of private pages
  • Properly timing your requests to obtain the most evidence
  • What are the consequences of a delayed request?
• Best practices for plaintiff lawyers: how to limit the amount of information available, or how to utilize social media to strengthen your case
  • Can social media pages be protected by solicitor-client privilege?
  • Effectively instructing your client
• How far is too far? Ensuring you are in compliance with privacy requirements
  

A disability claimant can often be eligible for a number of other benefits, including CPP, WSIB, Accident Benefits, and tort. The interaction between these benefit regimes can be extremely complex. What benefits are deductible? How will termination or settlement of one benefit affect another? What documents from other files are you entitled to? What is the optimal sequence of events to protect your client’s interests? Understanding the interplay between these regimes will directly impact your client’s bottom line. Learn how to prepare a strategy for co-ordination of benefit regimes that will result in the best value for your client.

• Leveraging the latest case law on deductibility to obtain optimal settlements in your negotiations
  • What do you need to know before entering into settlements?
  • When will negotiating an early settlement be to your advantage?
  • When to use multi-party negotiations and mediations
• Effectively wording settlement documents
• Minimizing tax implications on lump sum payments
• Ensure you have accurately calculated entitlement by understanding the interaction of disability claims with other benefits
  • Which benefits are deductible from your disability claim?
  • Differences in definitions between policies and legislation: how will it impact your medical evidence and eligibility for benefits?
  • How changes to the Statutory Accident Benefits Schedule (SABS) have impacted disability claims
• Preparing for the impact of benefits not yet applied for and how to account for them when handling your claims
  • How might certain benefits come into play later?
  • Becoming aware of how other available benefits can affect your disability entitlement
• When do rights of subrogation exist? Understanding your subrogation rights and meeting the test for subrogation

Surveillance and investigation is a key component of defending a disability claim. In many cases it can be the most effective or only defence to the claim. It is important for claims examiners and lawyers to know their options for investigation, and to be able work together with investigators to ensure that surveillance can be performed effectively and within your budget.

• Investigator defined: Know your investigator
• Cutting-edge technological advances in surveillance: how they can benefit you and the situations they should be used
• Defending the validity and credibility of your surveillance evidence
  • Common ways in which the weight or admissibility of surveillance evidence is challenged
  • How to instruct your investigator to ensure your surveillance evidence can withstand scrutiny at trial
• Complying with PIPEDA and the state of the law regarding privacy
• When to disclose surveillance: Factors to consider prior to disclosure to ensure you can obtain sufficient evidence and maximize its effectiveness
  • What must be produced for surveillance to be admissible?
  • Strategies for using surveillance to facilitate favourable settlements
• When is it reasonable to obtain surveillance during the claims handling process?
• The advantages and drawbacks of the use of social media as an investigative tool
  • How reliable is your social media evidence?

• Effective negotiation techniques for both plaintiff and defence counsel to obtain a favourable resolution
• Using opening statements to create an environment amenable to dispute resolution
• Why mediations fail: avoiding the common mistakes made prior to, and during, mediation
• Selecting the right mediator for your case
• When and how to involving your client in mediations
  • Preparing your client for mediation
• Offers to settle: what is the right timing for an offer? For accepting an offer?
• Identifying when to use lump sum and structured settlements
  

• Avoiding allegations of bias: how to ensure the credibility of your expert will stand up to attacks
  • When is it necessary to utilize a different assessor? What problems can arise when using the same experts repeatedly?
  • Appropriately outlining the review process and identifying the materials utilized in the decision making process
• How to choose between a paper review and an in-person examination
  • What are the limitations of a paper review compared to a full examination?
• Understanding the role of the family doctor/treating physician
  • What are the differences between treating physicians and medical assessors in terms of methodology and duty to the patient?
  • How to best utilize their evidence and records for your case
  • When should your expert consult with the treating physicians? How you can use them to bolster your report
• Working with your expert to obtain the best evidence possible
  • Drafting your instruction letters to ensure a clear and effective report
  • How to properly communicate with your medical expert without unduly influencing the final report
• When should you retain an expert? How the timing of a report can affect the strength of your claim
• Responding to and critiquing the opposing report
  • How you can challenge the credibility of the report and make it work in your favour
  • Selecting the right expert for the rebuttal report
  • Information that should be gathered to help your expert respond
• Presenting the medical evidence: communicating complex medical evidence to judges/jurors who may not be medically knowledgeable
  • Preparing your expert for examination-in-chief: simplifying your evidence to get your point across
  • Cross-examining the other side’s medical expert
• Complying with the additional requirements imposed by the Rules of Civil Procedure on the use of expert evidence at trial
  • An update on the impact of Beasley v. Barand and how to ensure all relevant evidence can be used at trial
    

Gain valuable insights directly from the bench! Hear what they found to be effective during the pre-trial process and what convinces them during the trial itself. You will gain candid, practical advice on:

• Best practices for trial and case management: how to identify cases that can be resolved quickly by summary judgment motions and how can you work most effectively to resolve other claims early on in the process?
• How to (and how not to) present your case at a pretrial conference in order to achieve resolution without risking costs of a trial
• Utilizing surveillance and demonstrative evidence at pre-trials and trials
• Medical experts and treating physicians: when not to qualify witnesses as opinion witnesses
  • What do judges find convincing and what should be avoided to escape the trap door of judicial disapproval?
    

Both insurers and insureds often struggle with the change in definition from the “own occupation” to “any occupation”. This change in disability definition can often result in a complete change in eligibility with little to no change in medical evidence or condition. Understand the interaction between the medical evidence and the legal tests to ensure that this definition is properly assessed.

• “Own occupation” standards: what is required to prove an inability to return to work at your previous occupation?
  • How do pre-existing or recurring medical conditions factor into the “own occupation” job duties?
  • What are sufficient circumstances for a return to work at the “own occupation”? How is a return to work on modified duties or hours viewed by the courts?
  • How is “own occupation” defined in cases with multiple jobs?
  • What are the obligations to prove an inability to work?
• Effective policy drafting: defining the essential duties of “own occupation” employment
  • Avoiding ambiguity in definitions
• Proving the ability to work in “any occupation”
  • Obtaining the medical and employment history you need from the insured to define “any occupation”: what are the sources of information and are they reliable?
  • Which medical assessments should be performed?
  • What confidential information and documents are you required to produce?
• Accommodating an injured claimant through the use of technology
• Critiquing a vocational assessment
  • To what extent does the job market/economy affect the ability to work in “any occupation”?
  • Rural/urban differences: what are the geographically limitations to the employment definitions?
• How have these terms been defined by the case law?
  

• Clarifying the duties and obligations of employers
• Understanding the “undue hardship” threshold: when will accommodation be considered to burdensome to employers?
• Analyzing the insured’s obligation to mitigate: what is required to meet the duty and what are the possible options?
• Avoiding liability due to a failure to inquire into a duty to accommodate: Huffman v. Mitchell Plastics
• What gives rise to duty of an employer to inquire into disability related needs?
• Assessing whether the claimant has received adequate and appropriate treatment before commencing an accommodation plan
• Devising plans for accommodation to meeting the needs of both the employer and employee
• Proactive steps that can be taken early on in the claims process
• Strategies for successful rehabilitation
  • Determining employee needs through assessments and consultation with treating doctors
  • Facilitating the return to work : ensuring the accommodation program is successful