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The issue of total disability in question before a judge

by

Charles Mathieu

26 June 2019 13:30

The concept of total disability has been challenged before the courts in a case that pitted SSQ Insurance to an insured in a class with a chronic disease it preventing it from working full-time.

The insurer stopped paying his insurance benefits salary, since he considered that his health condition related to her diverticulitis chronic stagnated for some time. SSQ, therefore, felt that the plaintiff was fit to return to work, it was undisputed before the Court of Québec.

The point in dispute : the concept of total disability. What has made it so that the judge Steve Guenard has clarified the concepts related to this state.

In its judgment, it ruled that : “The definitions of total disability are multiple in the case law, but […] the courts have recognized […] that the concept of total disability is no longer that of an unfortunate individual being, literally, nailed to the bed 365 days a year “.

This is Maurice Charbonneau, president and attorney in Charbonneau, counsel, who had noted the existence of this judgment in the Journal of the insurance.

The decision under the magnifying glass

Following the recommendations of his doctor, the workload of the plaintiff was limited to the teaching of basic subjects, namely French and mathematics. She must also be absent one day per week to rest.

The school board for which the plaintiff worked, whose name has not been revealed, acknowledged his diagnosis of diverticulitis is chronic and has accepted the decision to reduce the number of days of work weekly. Disability benefits have been paid by the school board for a period of 104 weeks, until 29 September 2009. It is at this point that we have started to manage the folder.

The insurer paid the equivalent of the salary of the plaintiff for one or two days each week since 2009. However, in the fall of 2016, SSQ stops paying the benefits, saying that the stress would not be responsible for crises related to the diverticulitis chronic. The result of the medical analysis carried out in December 2016, by the medical director of SSQ, Dr. Rene Hendricks.

Thus, according to SSQ, ” the plaintiff is not [met] – or not [met] more to the definition of total disability provided for in the contract of collective insurance “.

Debate doctors

Rasmy Loungnarath, colorectal surgeon by profession, was called to testify on the side of the defence. “I do not believe that an overload of stress or work causes diverticulitis acute. I believe that mrs. C can very well return to work 5 days per week. It is to be noted that throughout the course of his life [the plaintiff] is at risk of recurrence of diverticulitis if there is no sanction for surgical considered “, he said.

The latter may not say, “in light of all of the medical literature,” that stress can directly cause seizures diverticulitis acute. Thus, the plaintiff ” does not suffer from any particular limitation “, except when it is in a period of crisis.

The family doctor of the plaintiff, Dr. Sylvie Charbonneau, ” is a reminder that the diverticulitis is experienced by the patient is a disease called chronic, caused, in particular, by a high pressure in the colon. The stress, according to it, is attached to the intestinal transit. The intestinal wall of the patient is clearly fragile — the any results at all (or at least contributes) to inflammation, which leads to painful crises diverticular “, summarizes the judge Guénard in his judgment.

Between November 2002 and October 2014, the plaintiff has been the victim of six major crises, which led her doctor to say that stress at work could be one of the causes of these. Everything was state of total disability. The fact of reducing the number of work days would reduce the stress experienced by the plaintiff, she said.

“Dr. Charbonneau explains that stress is a relevant factor, in this case, as “in many pathologies,” “, one can read in the judgment.

The gradual return to the desired

After France Goulet, director, litigation and investigation for SSQ, the folder has always been run by considering a “gradual return” to work.

So, now that his medical situation is considered stable, the insurer asserts that the plaintiff is fit to return to work full-time. All would do so in a way that it would not be in a situation of total disability.

However, ” the insurance contract, the admission of all, contains no provision for such a mechanism of progressive return “, note the judge Guénard in his judgment.

This consideration would be included in a form of interpretation agreement concluded between SSQ and the Centrale des syndicats du Québec (CSQ), which was the union of the employees of the school board.

Note that the insurance company was related to the CSQ related to the salary insurance, long-term enjoyed by the plaintiff. However, the CSQ has désaffiliée of SSQ in 2007.

The disability is maintained

The Court considers that despite the evidence submitted by SSQ, the insured person remains in a state of total disability. “Consequently, and in view of the conclusion of the Tribunal on the main issue before the Tribunal is to condemn SSQ to pay [the sum of 17 280,03 $], updated on April 30, 2019,” said the judge Guénard.

This amount includes the payments scheduled between August 26, 2016 and 30 April 2019.

The plaintiff had also filed an application for punitive damages and moral, that the Court refused to grant.

“The Court has no doubt that the parties will abide by [the insurance contract], in light of the conclusions of this Judgment. That said, the Court cannot presume, that any “change” will not occur in the future, about the state of the plaintiff. It seems, however, highly unlikely “, one can read in the judgment.

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