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What is a “lack of objective evidence” in a long term disability claim?

Sometimes, the most debilitating injuries are not visible. While you can put a cast on a broken leg, it is much more difficult to show an insurer that you are continually plagued by chronic pain or psychological distress. Unfortunately, invisible disabilities are frequently stigmatized and insurers may deny your LTD claim on the basis that you do not have enough “objective evidence” to support your disability.

These are examples of debilitating illnesses that are frequently stigmatized and are the subject of criticisms resulting in claim denials:

The Supreme Court of Canada discussed this topic in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] S.C.J. No. 54. In this matter, the Supreme Court made the following comments with respect to chronic pain:

…Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.”

The burden of proof in civil litigation (like insurance denials) is much different than the burden “beyond all reasonable doubt” that is required in criminal cases that we frequently see on television. In civil litigation, we need to prove, on your behalf, that it is more likely than not that you are totally disabled.

It is very important for your doctors, treatment providers and medical experts to understand the importance of the words that they use in their reports. As your lawyers, we will make sure to phrase questions appropriately in order to ensure that the information is properly transmitted between your healthcare providers and your insurance company.

As your lawyers, we will help you understand what you are entitled to. We will be your advocate to help you get the benefits you need. If your medical condition requires “proof,” we will gather the necessary experts, connect you to the right doctors and build the strongest possible case on your behalf.


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MacGillivray Law is a personal injury law firm with offices in Nova Scotia, New Brunswick, and Newfoundland and Labrador. We serve clients all across Canada.

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