The lawyers at Aaron Waxman & Associates are experienced with Disability, Personal Injury and Employment claims.
This is the first of two blogs posts that will explain some commonly used terms. Many insurance policies are drafted with confusing and technical terms that insurance companies repeatedly use to deny and terminate claims. One of the many ways a disability lawyer can help you is by explaining what all the terms mean in the denial letter you receive from your insurance company.
It is difficult to receive a letter stating that your application for long-term disability benefits has been declined or your long-term disability benefits are being terminated when you are in a challenging financial situation. When you don’t understand what some of the terms mean in the denial letter it makes the situation that much more stressful.
It is important to hire a lawyer who understands these terms used by the insurance company and who is able to clearly explain what they mean, in language you understand. The lawyers at our firm are well versed in long-term disability matters and have helped many clients whose benefits have been denied.
Here are some commonly used terms that are important to have an understanding of:
Total Disability/Totally Disabled: Totally disability means you are reasonably unable to work. The definition was confirmed in a 1983 Supreme Court of Canada Case, Paul Revere Life Insurance Co. v. Sucharov where it was found that:
“The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s own occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure: hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease work, he is totally disabled within the meaning of health or accident insurance policies”.
The test is not that a person has to have an absolute physical inability, but if the injuries are such that common care and prudence require the person to stop working in order to effectuate a cure, he is totally disabled. Common sense requires you to stop working so you can focus on treatment and recovery.
Qualifying Period: A qualifying period (also known as a waiting period or elimination period) is the amount of time you must wait between the onset of disability and the first day you become eligible for long-term disability benefits. Qualifying periods for long-term disability policies range from policy to policy and can be anywhere from 105 days to 52 weeks, depending in the policy.
Definitions of Disability: In a long-term disability claim, there are 2 definitions of disability (2 “tests”) you are assessed for to determine if you qualify for disability benefits. First you are assessed as to whether or not you can perform the essential duties of a) your own occupation and then you are assessed to see if you can perform the duties of any occupation. In most policies, the own occupation period lasts for 2 years, but it can be less or more, depending on the policy. It is important to read your own policy to find out what tests are applicable and when they apply.
a) Own Occupation: Own occupation refers to your pre-disability occupation (the job you held at the time your disability occurred). During the “own occupation” period of your long-term disability claim, “totally disabled” means, that as a result of injury or illness (physical or psychological), you are unable to perform the regular (essential) duties of your own occupation. This test applies to the first 24 months of disability (or the period set out in your policy). Not every group policy has an own occupation test- some policies have only an any occupation test.
b) Any Occupation: During the any occupation period, the definition of total disability changes to mean that, as a result of injury or illness (physical or psychological), you are unable to perform the regular duties of any occupation for which you are suited for (or could become qualified for) by reason of education, training or experience.
Change of Definition: The change of definition occurs when the own occupation period ends and the any occupation period begins. The definition of disability changes from own occupation to the stricter test of any occupation.
Appropriate or Reasonable Treatment: You must be under the care of a physician and receiving treatment as part of your disability claim. The treatment you receive should be appropriate and relate to your condition e.g. if you make a claim for a psychological illness, an appropriate type of treatment would be that you are under the care of a psychiatrist and psychologist and taking medications.
If you or someone you know has applied for long-term disability benefits and been denied, or were receiving long-term disability benefits and your benefits have been terminated, don’t hesitate to contact the lawyers at Aaron Waxman and Associates. We have helped many clients whose long-term disability benefits have been denied and offer a free, no obligation initial consultation, which can be scheduled at a date and time that is convenient for you.
* This blog is for informational purposes only and is not meant to substitute legal advice. Please read our disclaimer for further information.
* All of our lawyers are licensed by The Law Society of Upper Canada
* Office in Toronto and able to represent people in the province of Ontario