Mental health issues are the leading cause of disability in Canada.  Approximately 500,000 people are off work due to mental illness every day in this country.  Despite these statistics, there are still insufficient resources available for treatment.  Many of us in the legal profession struggle to provide assistance without doing more harm in the process.

One would think that with increasing awareness and reduction in the stigma of mental illness, barriers to treatment and disability support would be crashing down. Unfortunately, we still have a long way to go in those departments. As personal injury lawyers, we encounter people who suffer from mental illness and are denied long-term disability benefits, as well as accident victims who develop mental illness as a consequence of a physical injury or traumatic incident.  Insurance companies have become just as skeptical about mental health-related claims as they have historically been with respect to chronic back pain claims.  If an injury can’t be confirmed with medical imaging or similar objective testing insurers are reluctant to pay benefits or compensation. Long term disability policies all have different definitions of disability, but many are still worded in a way that causes insurers to deny claims in circumstances where a person can do most but not all of their normal duties or where the claimant is not receiving the recommended course of treatment for their illness. If the duty the person can’t perform is getting out of bed and going to work consistently, or if a person does not have the requisite funds to pay for psychotherapy, deserving employees are often denied benefits. The denial of benefits in and of itself can increase the severity of the symptoms of the mental illness at the heart of the claim.

In motor vehicle accident claims there is coverage for psychological treatment available through no-fault statutory accident benefits.  However, the rate paid by automobile insurance companies for that treatment has not been increased in many years and there are few therapists willing to work at those lower than market rates. Even when a therapist can be found who will work within the auto insurance system, there can be lengthy delays in starting treatment due to long waiting lists, and denials by insurers who want to first secure another opinion as to whether an assessment or treatment is reasonable and necessary.

If legal action has to be commenced in order to claim fair compensation or disability benefits, the litigation process adds significant additional stress onto an already vulnerable claimant. The need to retell the narrative of a traumatic event to various assessors, lawyers and possibly a Judge and Jury can have the impact of retraumatizing a plaintiff and augmenting their already significant symptoms.

Proactive measures can sometimes reduce the damage done by the process. Meeting with the client’s psychotherapist and requesting strategies to help the plaintiff through a difficult mediation, examination for discovery or appearance at trial is one way to make the process less damaging. Meeting with the client to prepare for and explain various steps in the process also reduces the anxiety associated with the unknown. It is sometimes helpful to speak with opposing counsel or the mediator in advance of discovery or mediation in order to solicit their assistance in keeping the proceeding productive.  Resolving these kinds of claims is still an adversarial process, so not all counsel are prepared to work collaboratively, and some will be looking for triggers to try to get a strong emotional reaction from a claimant in an attempt to gain a strategic advantage.

At the beginning of the pandemic it seemed like people in the legal community shifted to be a little more kind, caring and conscious that others might be struggling. Many e-mails started out with a sincere hope that the recipient was well and staying safe. However, as time has passed we are seeing a return of the skepticism with respect to mental health concerns. A questioning of why severe depression might prevent a person from going to work or completing household tasks. Doubt as to whether mental health concerns are as severe and debilitating as claimants are reporting are questioned as they are deemed to be subjective complaints. A strong expert opinion is often needed in these cases from a psychologist or neuropsychologist who can explain the objective testing that can and is done in their field.

People suffering from debilitating mental health issues arising out of a motor vehicle accident or who have been denied long-term disability benefits should consult a qualified and experienced personal injury lawyer, like the lawyers of Burn Tucker Lachaîne.

The litigation community, as well as the rest of the world, would be wise to heed the advice of the late Robin Williams, who said: “Everyone you meet is fighting a battle you know nothing about. Be kind. Always.”

By Colleen Burn of Burn Tucker Lachaîne Personal Injury Lawyers

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