Our disability litiation lawyers know and understand that Union representatives play a key role in supporting fellow employees by reporting to union leaders on behalf of their peers. Many representatives take part or lead contract negotiations. They engage in the collective bargaining process on behalf of union members, act as spokespersons and they help motivate employees toward a better work environement. They help recruit members, work to achieve good wages and benefits. They are there are there to listen to employees’ concerns, investigate incidents, represent the member’s interests who have problems and represent them during meetings with the employer. We also understand that, when helping a member appeal his or disability benefits, that there may come a time when union representatives have done everything possible they could to help in the fight to help overturn a long-term disability benefit denial and support that member’s reconsideration efforts through the internal appeal process. Then what happens? Nothing. The problem with this in terms of disability claims, is that arbitrators do not have jurisdiction over insurance companies. Once the appeals process is done – the appeals process is done. The member has no further recourse. This is why many members who suffer from serious life-changing disabilities are left without monthly income, and who then become desperate to hire an experience disability litigation lawyer to help.
Our long-term disability lawyers understand that the Labour Relations Act provides that in most cases, disputes arising from the interpretation, application, administration or alleged violation of a collective agreement, including disputes as to whether a matter is arbitrable, are normally to be settled by way of arbitration. In other words where a dispute concerns a matter that arises expressly or inferentially from the collective agreement and is therefore arbitrable, the jurisdiction of the arbitrator is absolute and the Superior court has no concurrent or overlapping jurisdiction.
In other circumstances, however, the dispute and appeal process/requirements concerning long-term disability benefits or union members is silent and not referred to in the collective agreement – meaning that liability for the insurance company’s breach of contract and the disabled members entitlement to benefits can perhaps be determined by the jurisdiction of the Superior Court. In these circumstances, we are able to help Unions and their members in the disability appeal process. By allowing us to take over the member’s appeal and deal with the complex medical-legal benefit dispute in a Court setting, Unions can make things better for their disabled member, allowing them to focus on other important issues within the unionized settings.
Remember, seeking to overturn a disability denial in Court falls under the scope of contractual litigation, as well as medical-legal disability litigation, both of which can quickly become extremely complex and expensive. If the disability dispute by your member with his or her disability insurance company does not have an express or implicit connection to the collective agreement, or in the alternative, if the Union chooses to not extend it’s broad exclusive jurisdiction over the issue relating to disability – there is a good chance that we can help.
This is a question we are often asked – and the answer is in most cases, probably. The answer turns on whether or not the collective agreement mandates the arbitrability of entitlement of long-term disability benefit claims. In other words, the question to be asked is whether or not the member’s dispute with his or her disability carrier is subject to arbitration or, in the alternative, by way of Court process.
With collective agreement jurisdictional issues, the matter first turns to the context or essential nature of the dispute. Then, the issue is whether that dispute, in it’s essential character, arises from the interpretation, application and administration of the collective agreement. Arbitration jurisprudence has developed a method of deciding the arbitrability of disability benefit entitlement claims over the years, which is fact specific. Various legal tests have been set out by both aribitrators and our Courts to assist unions and lawyers in determining whether matters are to be dealt with by the labour relations system – or whether member can hire disability claims litigators to help them fight for the benefits they deserve.
The problem that we see is that the language of collective agreements often goes unchanged over years of collective barganing. While negotiations often centre around wage increases, health insurance and contributions, retirement plans and contributions, vacation, holidays, paid leave ect. – the language of the provisions concerning long-term disability appeals is often left unchanged and antiquated. For example, in a recent collective agreement that we reviewed, the languge surrounding the arbitrability of disputes concerning the health care worker’s entitlement to long-term disability benefits (that was only subject to grievance and arbitration under the agreement) had been left unchanged for nearly 30 years.
The reality is that people get sick and hurt – it is a sad and unfortunate fact of life. When a union member suffer such disability that he or she could no longer work, it is up to the union to represent those members in relation to their long-term disability benefit appeals – which can be very complicated – and expensive.
Often times, union representatives, understandably, do not have experience in handling medical-legal disability appeals process when a third party insurance company has denied or cut-off that members long-term disability benefits and financial livelihood. Preparing an appeal takes time. It cost money. It involved retaining the right specialists and clinical providers. In a perfect world, there should be a dedicated union specialist assigned to the disability appeals process in every case – but again, the issue for many unions is time, experience and money.
If the appeal is not prepared with proper clinical evidence or clinical opinions, a denial can be upheld and unfortunately, unions do not have jurisdiction over insurance companies. In other words, if an appeal is upheld, the union cannot force the insurance company to accept that it breached the disability contract by denying the payment of long-term disability benefits to the employee. The employee is then left in worse situation – without income to support him or herself, their family – all while suffering from a disability.
Conversely, our long-term disability litigators are able to file a lawsuit to protect union members and their families – if either the claim is non-arbitrable or if the union (who in most cases, provides instruction to the disability carrier) extends it’s broad discretion and consents to allowing the question of entitlement to be handled by our disability law firm, within the jurisdiction of the Superior Court.
Talk with Mr. Hyndman about Referring your Members to Save Time and Expense.
If you would like to speak to us about referring your members to our Disability Law Firm please feel free to contact Robert Hyndman, our Labour Relations and Disability Specialist. Rob would be more than happy to speak to you about the benefits of how your members can have the best chance of success in recovering long-term disability benefits.
Mr. Hyndman can explain to you how our firm can save you an incredible amount of work, time and costs by referring your members to us. Our disability lawyers have decades of experience representing the disabled. We are able to fight for your members, and demand that a court order and declare that the disability insurer breached the provisions of the benefits contract by failing to pay disability benefits (if that particular employee does in fact satisfy the definition of total disability within the parameters of the long-term disability policy ) thus giving your member and his or family a chance at recovering the income benefits that he or she deserves.
Robert Hyndman, has over 20 years of complex political and labour relations experience. Mr. Hyndman is the past president of the Ontario Professional Fire Fighters Association, a former 13th District Service Representative of the International Association of Fire Fighters and the past President of the Sudbury Professional Fire Fighters Association. Mr. Hyndman has extensive labour relations experience, extensive experience with collective bargaining and extensive experience with other forms of negotiations in both the private and public sectors. Our labour relations specialist will be able to assist you with the interpretation of your collective agreement, speak with your union specialist and determine whether or not the court has jurisdiction over your matter.
Mr. Hyndman would be more than happy to schedule a phone conference, videoconference or schedule and in-person visit at your office, no matter where you are in Canada to discuss how we can help ease the burden of advancing a disability claim for both Unions and their members.
Please feel to reach out to disability union specialist Rob Hyndman today no matter where you are in Canada at 1-844-4-DISABILITY or local if you live in Southern Ontario at 905-333-8888. Alternatively, you can reach Rob by emailing confidentially through our website and your inquiry will be directed to him if you make that request.
Fill in the form below to talk with Mr. Hyndman today about how we can help with your member claims.