Disability insurance policies often contain a clause requiring the insured to be under the regular care of a physician in order to qualify for disability benefits. In the case of Andreychuk v. RBC Life Insurance Co.1, the British Columbia Court of Appeal considered such policy wording and concluded that even if a medical condition is not treatable, an insured is required to be under the regular care of a physician in order to qualify for benefits.
In Andreychuk, the plaintiff, a lawyer, was having difficulty concentrating and sleeping and found the practice of law overwhelming. As a result she stopped working in September 2000. She was subsequently diagnosed with major depression and anxiety.
The plaintiff submitted a claim for disability benefits under an own occupation disability insurance policy issued by the defendant. Her disability was substantiated and her benefits were approved.
The plaintiff received disability benefits until June 2002 but further benefits were denied as a result of an independent medical examination which revealed no symptomatology of major depressive disorder, generalized anxiety disorder or panic attack disorder. From March 2004, after the independent medical examination, the plaintiff failed to be under the regular care of a physician.
The plaintiff brought an action for, among other things, a declaration that she had been continuously totally disabled since 2000 and entitled to long term disability benefits under her policy. Due to the limitation period prescribed by the Insurance Act,2 the plaintiff’s claim under the policy was limited to the period between March 10, 2004 and February 14, 2005, the date the policy expired.
At trial, one of the issues was whether the plaintiff was entitled to benefits for any period of disability after March 2004. The policy provided LTD or “total disability” benefits if, because of injury or sickness, the insured was:
(a) unable to perform important duties of his or her occupation; and
(b) not engaged in any other gainful occupation; and
(c) under the regular and personal care of a physician.
As the plaintiff had not been under the regular care of a physician for some time, she argued that “regular care” clauses will not bar recovery where permanent disability is established and no useful purpose would be served by regular attendance on a physician. This argument had been accepted in Kirkness v. Imperial Life Assurance Co. of Canada3 and a line of American jurisprudence. She also argued that she was at risk of becoming depressed if she returned to work.
The trial judge concluded that no further LTD benefits were payable. In doing so, the Court disagreed with the plaintiff, finding that her condition was treatable. The trial judge distinguished Kirkness and the American authorities on this basis and applied the reasoning in Rose v. Paul Revere Life Insurance Co.4
In Rose, the British Columbia Court of Appeal was called upon to consider the case of a dentist who had become disabled with depression. He recovered and was no longer receiving medical care but felt that a return to his occupation would cause a relapse. The policy in Rose required the regular and personal attendance of a licensed physician. The Court of Appeal in Rose held that where an insured recovers and becomes healthy as a result of withdrawal, the disability benefits cease because coverage does not extend to inability to work due to a condition not under medical treatment which renders the insured physically or psychologically “allergic” to his or her occupation. It extends only to the inability to work due to sickness for which regular medical treatment is given, and continues so long as sickness and treatment continue.
The Court of Appeal in Andreychuk affirmed the conclusion of the trial judge that the plaintiff was not entitled to further disability benefits as she was not under the regular and personal care of a physician. However, the Court of Appeal stated that in affirming the conclusion of the trial judge it did not do so by distinguishing the American authorities and Kirkness, or by relying on the trial judge’s finding of fact that Ms. Andreychuk’s condition was treatable, which appeared to be the basis upon which the trial judge applied Rose. Rather, in rejecting Ms. Andreychuk’s appeal, the Court of Appeal held that the fact that a medical condition was not treatable does not make Rose inapplicable.
As a result of the decision in Andreychuk, the door has been opened for defence counsel to argue that even if a medical condition is not treatable or where treatment serves no useful purpose, if a policy of insurance contains a clause requiring the insured to be under the regular care of a physician in order to qualify for disability benefits, this must be met.