This blog post was created by Ontario disability lawyer Mark Yazdani. For further information, visit Mark’s disability law information site: www.disabledlaw.ca.

The Kevin Drew Lumsden v. The Government of Manitoba disability court decision was released by Court of Queen’s Bench of Manitoba on September 7, 2007.

Kevin Lumsdun, a 45 year old physiotherapy aide was employed by the Manitoba Development Centre, a special care home for mentally and physically challenged residents. His job duties included assisting in physical therapy programs under the supervision of a physiotherapist and carrying out various physical activity programs as well as some administrative duties. His job was physically demanding but he enjoyed his work and he was proficient at it.

Mr. Lumsden was insured through his employment by a Long Term Disability policy issued by the Provincial Government and managed and adjudicated by Great-West Life. The policy provided benefits if an employee suffered a disability which prevents him from working in his own occupation for a period of 12 months. Afterwards, the policy provides benefits if the employee is unable to work in any occupation for which they are suited by education, training, and experience.

Early in the 2000’s, Mr. Lumsden began suffering increased pain symptoms from a combination of Raynaud ‘s Syndrome myofascial pain, fibromyalgia, low back pain, and depression. He started having an increased number of sick days as a result. On February 21, 2003, after being treated by numerous doctors and specialists for his worsening symptoms, Mr. Lumsden made a disability claim as a result of being unable to work.

Great West Life’s position was that Mr. Lumsden was not totally disabled because there were no objective clinical findings that proved disability. As a result, his disability claim was denied a total of six times. Mr. Lumsden then hired a Winnipeg disability lawyer and sued the Government of Manitoba for disability benefits.

After hearing all the medical evidence at trial, the court was satisfied that Mr. Lumsden was disabled from both his own job duties and from any other occupation due to significant chronic pain and fibromyalgia. The court noted the insurance company did not conduct an independent medical examination nor was there any surveillance evidence to show that the Mr. Lumsden was malingering or exaggerating his symptoms. The court also noted that Mr. Lumsden had spent the better part of the past five years and then some seeing various doctors about the medical and health problems plaguing him.

When considering the issue of mental stress damages, the court found that Mr. Lumsden’s “marriage suffered and his wife and children eventually left him, he lost his home and for approximately two years lived out of a suitcase, staying with friends until his mother purchased a home for him.” The judge stated as follows: “I have no hesitation in finding that the denial of the plaintiff’s claim in this case over the extended period that occurred was unfair and caused the plaintiff compensable mental stress.”

Thus, the court awarded Mr. Lumsden disability benefits and ordered that they continue to be paid while Mr. Lumsden remained totally disabled. The court also awarded damages for mental distress in the amount of $45,000.

The Manitoba Court of Appeal reduced the aggravated damages award to $25,000.

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