January 20, 2023

By Nick Melchiorre

The phrase “total disability” is used frequently in government benefits and private disability insurance plans.

But how do you know whether you, your employee, or a loved one is totally disabled?

The first thing to know is that the determination will depend primarily on the particular legislation, plan, regulation, or insurance policy in question, together with medical and other evidence.

Our primary objective here is to provide information so that you are aware that total disability may not have an obvious meaning in every situation. In various contexts different meanings may be called for.

As a result, if you are involved in a dispute in which total disability is the issue, you need to carefully review the source material, and the medical information, plus other evidence such as surveillance or witness statements, to come up with even a guess as to whether someone is totally disabled for the purposes of a particular situation.

This is complex and challenging. That is why we always recommend that anybody who is at all in doubt about entitlement to benefits seek legal advice. There are still many cases that go to adjudication, whether at a tribunal or a court, and need to apply the generalities of the law to specific facts. That illustrates how difficult it is to determine whether someone is totally disabled.

Any doubt or ambiguity will almost always be interpreted in favour of finding the person to be disabled. Whether it is a government plan or a private plan, the plan exists to provide peace of mind and security to individuals. That peace of mind will be eroded if benefits are made unavailable because “totally disabled” is narrowly interpreted.

Insurers may find themselves subject to punitive or aggravated damages if they act in bad faith when making a determination about disability. Punitive damages or aggravated damages may arise in situations where payment under a peace of mind insurance contract is denied. The courts recognize that the denial increases the stress on the disabled person and robs them of the very peace of mind for which they or their employer paid.

THE ISSUE

However, very few people would sue or apply to a tribunal simply to seek aggravated or punitive damages. In most cases, it is the payment of back benefits plus continuation of benefits that are in issue. That issue still depends very much on starting with a definition of “totally disabled”.

THE CASES

The basic definition of “totally disabled” is so well established that the leading case dates back to 1983. In Paul Revere Life Insurance Co. v. Sucharov. the Supreme Court of Canada considered typical wording in a group disability plan, similar to definitions which remain in use today. Under that policy, the claimant was entitled to receive benefits for 104 weeks (2 years) if they were unable to perform the essential duties of their own occupation. After 104 weeks, the definition changed such that the benefits would only continue if the claimant was disabled from performing the essential duties of any occupation for which they were qualified by education training or experience.

The Supreme Court of Canada ruling in Paul Revere has been extended that even after 104 weeks, the employment for which the person is qualified must be gainful employment with comparable status to their prior job.

The Court determined that although Sucharov could carry out many of the duties of his former job, he was totally disabled, because his inability to deal with stress made him an ineffective manager. This started decades of battles over stress related disabilities, but the basic ruling in Paul Revere remains the law.

In finding Sucharov totally disabled, the Court adopted the reasoning found in a leading insurance text that had been revised in 1983. Couch on Insurance says that:

The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure; hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease all work, he is totally disabled within the meaning of health or accident insurance policies.

(Emphasis added)

A similar test is applied post-104 weeks, where the disputes more frequently occur.

Another text, Disability Insurance Law in Canada, describes the test post-104 weeks this way:

A person is considered not to be totally disabled from engaging in “any” occupation if his condition would enable him to enter into an occupation reasonably comparable to his old occupation in status and reward, and reasonably suitable in work activity in light of his education, training and experience.

Courts have generally interpreted gainful employment to mean burning 2/3 of the preinjury income or rounded it up to 70%. Some policies have now added their own definitions that more precisely defined the level of earnings that will trigger discontinuance of benefits. These differ from policy to policy. As noted above, it is always important to review the source documents.

Paul Revere has been applied over 100 times in roughly 40 years since it was decided. This includes recent cases.

In Ontario for instance, we located two decisions from 2020.

Kardaras v. Sun Life Assurance Company of Canada was a disability insurance case where the claimant was awarded benefits to the 104-week mark, but not after. She also received $10,000.00 in damages for the insurer’s breach of the duty of good faith in not considering the evidence of the claimant’s health even-handedly.

On the facts, the judge found total disability from her own occupation (the first 104 weeks) but that the reduced hours worked, and modified duties performed by her were not enough for post-104-week eligibility, in part because she retained the same job title, and was earning about 73 percent of her pre-illness income – the “status” and “rewards” mentioned in the text.

Disability disputes also end up in front of labour arbitrators, and one of the 2020 cases took place in Thunder Bay.

Thunder Bay Regional Health Sciences Centre v Ontario Nurses’ Association concerned a denial of sick pay to employees who attended colonoscopies. The employer maintained that this was not total disability due to illness or injury as required by the plan. The parties agreed that on the dates in question, the workers were totally disabled, relying on Paul Revere. The arbitrator ruled that this disability was caused by the procedure, not illness or injury. So sometimes the parties agree on the total disability, but as in most cases, causation is also important.

A third major area where Paul Revere is relevant is the entitlement to income replacement benefits (IRBs) under the statutory accident benefit schedule applicable to automobile accidents in Ontario (SABS). The most recent of those cases we located was 2019. The schedule does not use the term “total disability” but uses language like most disability policies in determining eligibility for IRBs.

18-001627 v TD Home and Auto Insurance Company, was before the License Appeal Tribunal, which not only hears appeals of licence disputes, but it is also the tribunal that decides disputes under SABS. There were several reasons for the denial of benefits, but the tribunal quoted with approval the passage in Couch on Insurance relied upon in Paul Revere to describe the meaning of totally disabled.

TAKEAWAYS

  • The meaning of “totally disabled” may vary depending upon what law or contract is being interpreted
  • The process of interpretation must begin by considering all the facts, including documents and evidence
  • The words must be read in context and with regard to the purpose of the provision.
  • Decision makers will generally favour injured or sick people over insurers or corporations, but this does not stop them from upholding a denial of benefits in an appropriate case.
  • The process is complex and challenging.
  • Claimants are far better off if they obtain legal advice.
  • Bad faith may create entitlement to punitive or aggravated damages. Insurers do not want you to know this – another reason to talk to a lawyer.

WHAT WEILERS LLP CAN DO FOR YOU

Weilers law has expertise in both insurance an employment law. We are deal continuously with medical evidence, whether treating physician reports or expert evidence.

Like most lawyers who handle disability insurance claims for claimants, we are happy on a “sure winner” to agree not to be paid until the claim is paid. What we do differently from that approach is that we will also agree to a modified fee basis to take on more challenging cases. That modified fee basis would aim to cover our overhead costs and then offer us an increased profit if we are successful.

We do not know for sure, but we hear that some of the firms that advertise “we don’t get paid until you do” only take on easy winners. We are also unlikely to take on your file if we think you will lose, because that does nobody any favours. We will be honest with you about that up front. However, our openness to creative fee arrangements may increase access to justice.

Nobody wants to be injured or so sick that they need disability benefits. However, if you do and you get into a dispute, Weilers LLP maybe the right law firm for you.

Weilers LLP also acts for those who pay disability benefits or sick pay. Our Labour Law Group has extensive experience in arbitrations, and work closely with our litigation group to cover any medical issues that arise. We would be happy to discuss whether we are the right lawyers for you not only on disability claims, but other labour and employment issues as well.