Unusual situation/pre-existing condition/previous claims

I have an unusual situation and any thoughts would be appreciated.

I initially went on an STD leave from a senior management role February 2019. LTD started September 2019 with a 24 month same occupation period. September 2020 I took a much less responsible/lower paying position with a different company. I was not yet at baseline but I was eager to work again. I enjoy my work (or at least did before everything became too much) and like my employer. It has been a struggle but I’ve pushed through for the most part.
My LTD claim stayed open after i started work at the new job as I was in the own occupation period however, after a lot of pressure from the insurance company I agreed to them closing the file. That would have been probably March of this year.
I have been at my new job 11 months and I am not doing well. For the past 6 weeks I have not been very functional at all and I am not focusing well. I am making errors at work because of my symptoms. My doctor is suggesting I take a leave and we work on changing my medications. I hope it will be a short leave and I can come back to work after some adjustments have been made. I would also want to arrange to see an occupational therapist to help with the cognitive changes I’m struggling with as a result of my symptoms.
However - if it isn’t brief and extends past STD I am one month shy of the pre-existing clause for LTD at my new employer. Is there anyway to reopen my old claim with the other insurance company? I would still be in own occupation period if I had left it open. I don’t know that I can go another month in order to qualify for the pre-existing clause for LTD. I’m really barely hanging on.
I’m feeling very defeated right now.

I have no idea.
My guess is maybe with a lawyer? :slight_smile:
Get the free consult:
Free Consultation Request — Resolute Legal
Best of luck.

Do you have one diagnosed condition or is there a secondary condition that may not have been yet existing ? I was denied based on pre-existing exclusion clause. They told me that because it was not possible to know which condition caused the symptoms because the overlapped, they could not determine if the second condition was pre-existing. I was told my only option was to prove the very thing they claimed was impossible to determine lol

however I was able to argue that one pre-existing condition did not exclude coverage for a secondary condition that could not be proven to have been pre-existing. There is no such clause in my contract so they had to approve …

The Court of Appeal found that the exclusion clause was ambiguous as it did not encompass the specific circumstances at hand, i.e., where one of the contributing illnesses that caused the total disability did not receive medically required services in the 13ltd-week period. Essentially, it was incumbent upon Sun Life to have more clearly worded the language of the exclusion provision to prevent this unique situation. Ultimately, the Court of Appeal applied contra proferentem and resolved the ambiguity in favour of Mr. St-Laurent. The Court refused to give effect to the exclusion provision.

Source: "Sorry, We Don't Cover That" – Exclusion Clauses In Long Term Disability Policies - Insurance - Canada

I also cited this (sorry google translation from french)

As for the burden of proof, it is up to the insurer to establish the existence of the pre-existing disease:

"The Company, which invokes the exclusion, has the burden of establishing a pre-existing injury or illness at Tassé’s knowledge of the latter and for which he was receiving treatment in the twelve months preceding the effective date. insurance. "

According to the evidence in the file, Ms. Goyer experienced an episode of nervous breakdown (burn out) in 2001 for which she was absent from work for two months and received medication (Prozac 20 mg).

After his two-month break and return to work, his attending physician, Dr Marc Steben, recommended that the drug Prozac 20 mg be continued to prevent a relapse.

No other work stoppage occurred before the event of August 30, 2013, for 12 years.

Ms. Goyer admits to having met her attending physician in March 2013 for her normal examination every 18 months and explains that she was not in any state of depression or burnout at the time.

It was a few months after starting his employment with P.L.B. International Inc. that Ms. Goyer says she felt the first signs of a “burn out” like the one she experienced in 2001.

The defendant did not submit any medical evidence and did not ask Ms. Goyer to meet with her own expert.

According to the clause under review, the following conditions must be demonstrated:
The invalidity occurs within twelve months of the entry into force of the insurance;
And is attributable in whole or in part to an injury or illness;
For which the participant received care or took medication during the ninety days preceding the effective date of his insurance.

However, the insurer has not proven that the disability is attributable to a previous injury or illness and has not discharged its burden of proof regarding the application of the exclusion clause.

The Tribunal receives the credible explanation submitted by Ms. Goyer that on March 18, 2013, during her routine meeting with Dr. Steben, she did not suffer from any illness or symptoms of illness.

His testimony is corroborated by Dr Steben’s letter which reads as follows:

" To whom it May concern,

This letter is to confirm the medical follow-up of Mrs. Suzanne Goyer.
Ms. Suzanne Goyer has been my patient since 2001. I have always had annual follow-up until a few years when the follow-up became every 18 months because of the great stability of her state of health. In 2001, I recommended a work stoppage for burnout. When the treatment was stopped, Prozac 20mg was prescribed and a therapeutic procedure with a psychologist. Since that time, I have successfully maintained Prozac 20mg for relapse prevention. The 20mg dose was never increased and no further sick leave was necessary afterwards. Ms. Goyer’s state of health is excellent and very stable.

I hope this information is helpful and please do not hesitate to consult me ​​for further information (sic) if necessary.
(S) Marc Steben md
Medical director
Clinic A rue McGill »

Plaintiff Goyer has proven that the medication renewed on March 18, 2013 was for preventive and not curative purposes only, as submitted by the insurer.

Goyer v. SCDA (2015) inc

It took almost a year but I won.

Awesome, congratulations.