Many insurers contract out the adjusting of the LTD claim to independent companies, many of which take an aggressive approach to submitted claims. It is important to determine where the decision has been made to deny the LTD claim. Often the only way to determine this is to request an affidavit of documents before the discovery of the defendant has been determined. The true decision maker should be examined and where this person is not an employee of the insurer, consideration should be given to adding that entity as a defendant to the action.

Of some note to this effect, although not precisely on point is the arbitral decision of Arbitrator Daniel Harris in Re: Hamilton Health Sciences Corporation and ONA. This case examined the employer’s liability for moral and punitive damages when it had chosen to and followed the advice of an ASO.

The final decision in the ASO agreement to accept or reject the disability was that of the employer. The ASO could readily have also been added in a civil case by a claim in tort.