The date to test the disability

The Manitoba Queen’s Bench in its 2003 decision determined that the relevant date for the determination of the existence of the disability is the date on which the benefits were denied. ¹

The issue to be determined in this case is not whether the plaintiff is well or free from injury or some disability, nor as to what her condition was in 2000, 2002 or at trial. Rather, it is whether she was totally disabled within the definition applicable under the LTD Plan at the time her benefits were terminated, namely September 1998.

The decision of Mr. Justice McEwan a May 2005 decision of the B.C. Supreme Court came to the same conclusion: ²

The defendant submits that the ultimate issue is simple, and that the case turns on the relatively narrow question of whether the plaintiff was able to “function in the work place” in November of 2000. I accept that the relevant date for assessment is the date of termination.

This presumably means the “effective date of termination” as opposed to date on which communication of the termination decision was made.

To the same effect is the decision of Mr. Justice Steele of the Ontario Supreme Court in which he confirmed that the date of assessment, in that case, was the date of the commencement of “any occupation” benefits, this being the end of the two year “own occupation” period. ³

The time to assess the medical evidence to deny or support the disability claim is not as simple as stated above. These cases deal with the controversial point in issue in each particular context. The proof of disability is not necessarily limited to a fixed point in time.

The plaintiff must prove, apart from “active employment” at the onset of the disability:

1. A continual disability through the qualifying period; and
2. Usually a disability based on the “own occupation clause” at the commencement date of benefits;
3. which is continual through to the commencement of the “any occupation” period;
4. and beyond as the insurer may require medical examinations to prove.

All of the above is subject to a recurrent disability term, which is an exception to the need for continual disability.

Ironically, if the insured was disabled on day one of the relevant period and recovered on day 2, he may still be covered for a recurrent disability as this period may be defined in the policy. There is no need for the disability to be continual to the date of the recurrent period, only that it is proven at the time period of the eligible date and the recurrent date defined in the policy.