Disability Issues In The Workplace

Chart of Post-Fidler cases

The narrative review of these cases appears here.

Case	Details	Mental Distress	Punitive

Rowe v Unum OSC December 2006	Unfair process led to denial of benefits; Amendment at trial for aggravated and punitive damages; The plaintiff sought to obtain a higher sum to include damages suffered due to the requirement to cash his RRSP and the sale of his home, both of which were denied.	$30,000
Saunders v RBC Insurance, Newfl & Lab SC May 2007	Unfair denial of disability benefits	$25,000
Lumsden v Manitoba Manitoba CA Feb 2009 Trial decision not reported	CA reduced trial award from $45,000 to $25,000	$25,000
Wilson v Saskatchewan Government Insur ance Sask QB 2010	Failure to conduct a reasonable and fair investigation of the claim. Insurer advised of intent to cease benefits which was then reversed; Issue of need for financial loss to uphold breach of duty of good faith; not required		($7,500 plus costs seen as part of punitive damages of $7,800)
Wilson Sask CA November 2012	Punitive damages set aside; No pleading of punitive damages; Trial award of costs as a punitive damage component converted into mental distress award	$7,800	nil
Branco v American Home Assurance & Zurich Sask QB March 2013	Two insurers were defendants; American Home (AIG) AIG provided benefits for work-related injuries based upon WCB benefits payable in the Province of Saskatchewan	($300,000 re Zurich; $150,000 re AIG)	($3 million re Zurich; $1.5 million re AIG)
Branco Sask CA June 2015	Zurich acknowledged its wrongdoing well before trial and paid out the benefits; Plff became depressed, anxious and irritable. He lost his house and had to move back in with his mother. He separated from his wife. He had to rely on his daughter for financial assistance. The loss of his income, independence, and family life caused him significant anxiety. After it approved the claim, instead of paying the sum admittedly owing, it made a settlement offer of that sum, less fees it was required to pay to the plaintiff of $9,000 on a contested motion as to jurisdiction, for which it requested a release; The approval of benefits for the “own occupation” period of two years in 2002 were not communicated to the Plaintiff until 2007, and were not paid until 2009; The defence in the action denied that it owed such benefits, when it knew that to be untrue; The company’s legal department withheld medical reports from its own claims department for years. Re AIG: It suspended benefits due to the delay in receiving its medical report from its own expert. Upon its physician and the plaintiff’s doctor approving benefits, it still failed to authorize payment for 18 months. In February of 2003, when AIG’s internal adjuster approved benefits through to December 2002, it failed to pay this sum until April of 2003. The attempt made by AIG to pressure the plaintiff to accept a “low-ball” settlement sum. Re aggravated: As to sum for mental distress damages, the Court of Appeal referenced the cap of personal injury damage awards, which then stood at $350,000, noting that the trial decision exceeded such sum and that the plea at trial was for a total sum of $100,000 roughly.	$30,000 re Zurich; $15,000 re AIG	$500,000 re Zurich; $175,000 re AIG
Fernandes v Penncorp OSC trial March 2013	Penncorp did not pay him for six years from August 2005 until September 2011 for his inability to work at his occupation of bricklaying. They finally conceded in September 2011 that he was entitled to be paid for two years under the policy, by reason of his inability to do his own occupation. Insurer took an adversarial approach to claim for benefits for inability to do his own occupation; ignored the detailed job description of his occupation of bricklaying that plff provided in the questionnaire; Insurer did not deal with his claim “fairly” and in a “balanced” way. Plff humiliated; No professional evidence on impact on plff’s life	($100,000)	$200,000
Fernandes v Penncorp OCA Sept 2014	No details from trial judge on aggravated damages. Noted that plff originally claimed $25,000; Trial award of costs also reduced	$25,000	$200,000
Industrial Alliance v Brine NS SC trial June 2014	the trial judge found that the company unfairly discontinued rehabilitation services, failed to provide its expert report until the week prior to trial, 10 years later, and issued T4 slips even after it had received a Tax Court ruling to the contrary. Insurer argued fraud to obtain set off following bankruptcy which was clearly offset in the bankruptcy; Insurer withdrew rehab services;	($150,000 as aggravated and $30,000 as mental distress)	($500,000)
Industrial Alliance v Brine NS CA November 2015 Leave application dismissed	Re aggravated: The failure to pro-rate the repayment obligation was not “fair and reasonable”; The decision to cease the rehabilitation services disregarded the medical evidence and further based on the plaintiff’s successful CPP application, the latter without asking the plaintiff for his views; The failure to provide the plaintiff with its expert report until the week prior to trial, 10 years after its creation, to the prejudice of the plaintiff. The continued production of T-4 slips following receipt of a tax ruling that the benefits payments were not taxable. Re punitive: The conduct of the defence, particularly the evidence of the company representative and her “wanton disregard for the accuracy of her trial testimony in the face of” contrary documents; The T-4 issue; The delay in providing its expert report; and The rehabilitation services.	$90,000	$60,000
Doyle v Zochem OCA 2017 Trial decision not reported	Employer unfairly denied application for short term disability benefits. Award of 10 months notice and $25,000 of sexual harassment was not appealed.	$60,000
Stewart v Lloyd’s BC SC Trial Sept 2019	Bad faith in settlement of health care bills with foreign provider; Denial of coverage reversed before trial;	$10,000	($100,000)
Stewart v Lloyd’s BC CA March 2022 Leave denied	Legal fees not allowed as compensatory damages; Decision to deny and later allow claim was not subject to punitive damages; The judge erred in law in finding that the respondents breached their duty of good faith to the appellant in the manner they settled the health care providers’ accounts; accordingly the punitive damage award cannot be sustained. The issue of the health care costs was one between the providers and the insurer and not the plff. No appeal on mental distress award.	$10,000	nil
Baker v Blue Cross OCA December 2023 on appeal from a jury award at trial	Appeal was based on award of punitive damages and costs. Leave to appeal was allowed on costs as a discrete issue. OCA overturned principle of full costs on a disability claim, yet upheld the full costs award in principle and quantum, given the bad faith conduct. Blue Cross relied upon medical opinions from general practitioners which it knew or ought to have known that they were incorrect; It selectively chose evidence to support the denial and ignored contrary medical evidence. One such detail was that a report from a Dr. Knox, an external reviewer, which stated “I don’t believe she can return to work at this time, even on a part-time basis”. This statement was omitted from the review; The insurer sought an independent medical examination for the first time two and one-half years after the stroke; Having received this report, it distorted its conclusion to support the denial decision; It “persisted in distorting Dr. Kane’s and Ms. Kresak’s reports even when counsel for the plaintiff drew these errors to its attention. ¹	$40,000 Plus full costs at $1 million; Full arrears and declaration of entitlement	$1.5 million