The Insured sought continued disability benefits under a policy of insurance obtained through her employer. The Insured's claim was dismissed on the basis that she failed to prove that she continued to suffer from "total disability" as the term was defined in the employer's long-term disability plan.
Penner v. Manitoba. March 13, 2008. Manitoba Court of Queen's Bench. Oliphant A.C.J. Q.B.
In May 1988, the Insured sustained an injury to her right hand caused by freezing during the course of her employment with the Government of Manitoba. She received total disability benefits for a total of 12 months, pursuant to a long term disability plan. After this time, her employer discontinued benefits on the basis that the Insured was no longer "totally disabled" from any employment for which she was suited.
By the Spring of 1989, the Insured had not returned to her employment with the Government but had chosen to become a foster parent together with her husband. The evidence at trial was that the Insured and her husband had fostered many children over the years, sometimes as many as 5 children at a time, and that they were paid for their efforts in this regard.
In 1991, the Insured advanced a claim for disability benefits to the adjudicator of the plan. She was seen by a number of physicians in 1991, most of whom concluded that while the Insured would not be capable of repetitive use of her right hand, she was capable of some other suitable occupation. Several physicians also concluded that there was likely a psychological component to the Insured's continued complaints. In January 1993, a medical review panel, established pursuant to the workers compensation legislation, concluded that the Insured did not continue to suffer any physical effects from the incident in May 1989.
At trial, the Insured argued that she suffered from a total disability as defined in the plan because she was unable to use her right hand following the incident. She maintained that being a foster parent was not an "occupation or employment for remuneration or profit" and the fact that she engaged in this activity should not detract from her position that she was "totally disabled" from employment. The Government maintained that, based on the medical evidence, the Insured was not totally disabled from any employment for which she was suited after May 1989. The Government also argued that, from 1989 onwards, the Insured had engaged in the occupation of foster parenting and had received remuneration for her efforts in this regard.
The Court considered the relevant case law and noted that in cases such as this, the plaintiff bears the initial onus of establishing disability after which the evidentiary burden shifts to the defendant to demonstrate the availability of work that can reasonably be performed by the plaintiff.
The Court concluded that the Insured had failed to prove a prima facie case that she was, on May 12, 1989, or thereafter, totally disabled within the definition in the plan. Neither the medical evidence nor the testimony offered at trial demonstrated that she was completely unable to engage in any occupation or employment that was reasonably suited to her. The Court further concluded that even if a prima facie case had been proved, the Insured's claim would have failed because the Government had met the onus of showing that there was suitable employment available to her, namely as a foster parent.
This case was digested by Shanti Davies and edited by David W. Pilley of Harper Grey LLP.