The lawyers at Aaron Waxman & Associates are experienced with Disability, Personal Injury and Employment claims.
TYPES OF DISABILITY CLAIMS
Types of disability claims that can lead to an extended absence from work can fall under the following categories:
Chronic pain can affect your ability to perform your job duties as it can cause pain distraction and there is a known connection between chronic pain and psychological issues. Chronic pain claims include the following types of symptoms/syndromes:
Like chronic pain, orthopedic injuries/issues can cause pain distraction, and also due to the need for pain medication, cause difficulties completing the essential duties of a person’s occupation.
Brain injuries can range from mild to severe. Mild brain injuries include concussions, which can have long-lasting symptoms if a person goes on to develop post-concussion syndrome.
A brain injury can cause symptoms that might hinder person’s daily functioning. Symptoms of a brain injury include impairment of cognitive abilities and impairment of physical functioning.
Symptoms of psychological illnesses or exacerbation of symptoms can interfere with a person’s functional abilities. Some conditions that people make disability claims for include:
There are various types of chronic illnesses or chronic conditions which can flare up from time to time and interfere with a person’s ability to complete their activities of daily living, including performing their job duties. These include:
Most insurance companies will pay benefits during the course of treatment/recovery from surgery, but there are times when an insurance company denies benefits as in their opinion, you are past the standard recovery guidelines. However, you may have developed issues secondary to treatment and not be able to return to work and require more time off work.
IMPORTANT TERMS YOU NEED TO KNOW
Insurance policies are drafted with very technical terms and unfamiliar jargon that insurance companies repeatedly use in their letters when they deny and terminate claims.
We understand how difficult it can be to receive a letter that says your application is denied 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.
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. This section discusses some commonly used terms that are important to understand:
Definitions of Disability (“Totally Disabled”)
In a long-term disability claim, there are 2 definitions of disability (2 “tests”) used to determine if you qualify for disability benefits. First you are assessed as to whether you can perform the essential duties of 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.
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.
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.
The 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.
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.
Restrictions and Limitations
A restriction refers to an activity that your doctor has advised you against performing because of the risk of it aggravating your symptoms/risk of harm. A limitation refers to an activity that you cannot perform due to a lack of physical or psychological capacity. A restriction or limitation can be temporary or permanent.
These are restrictions in performing fundamental physical and mental actions of daily life. For example:
Work Hardening Program
Your insurer may arrange a work hardening program for you if it is felt that you would benefit from a rehabilitation program in order to prepare you for a return to work. This is usually arranged with the help of a rehabilitation specialist that has been assigned to your claim. A work hardening program can be for chronic pain conditions or psychological conditions and usually involve a multidisciplinary approach which can involve treatments such as physiotherapy, kinesiology, chronic pain education, occupational therapy and cognitive behavioural therapy sessions. If the program makes your symptoms worse or you are unable to participate, you must have medical evidence to show why you are unable to participate/continue participating.
Graduated Return to Work Program
A graduated (or gradual) return to work program is a schedule arranged by your insurer and employer (with the help of a rehabilitation specialist) that gradually increases the number of hours and days you work until you reach full time hours and days at work. Typically, the rehabilitation specialist or insurer will request medical clearance before initiating the program. If you are unable to participate in this program (or continue participating in the program), you must have medical evidence that shows that your symptoms would be made worse by participating.
Many long-term disability policies have a “recurrence” clause, which means that if you return to work but are unable to continue working as a result of the same disability, you will not have to submit a new application and can make what is called a ‘recurrent’ claim. Under some policies, the time limit to make a claim for recurrent disability is 6 months. It is important to check your policy to find out what the time limit for making a recurrent claim is.
An offset is another source of income that you are receiving/entitled to (e.g. CPP Disability Benefits) that your insurer can use to reduce benefits payable under the LTD plan (therefore affecting your monthly LTD payment amount). You should review your policy to determine what other sources of income are offsets under your policy.
The gainful employment test relates to the any occupation period. In general terms, a gainful occupation is one that is able to provide you with, for example, 60% of your pre-disability income. The insurer looks at your education and employment history and tries to determine if you are reasonably able to perform a job that would pay you that amount of your pre-disability earnings.
USEFUL TIPS FOR PEOPLE WHO HAVE FILED A LONG-TERM DISABILITY CLAIM
If you have been injured or are suffering from an illness that prevents you from working for a prolonged period you might be considering making an application for disability benefits, or you may already have an ongoing short-term or long-term disability claim. There are many things you might want to keep in mind when you make an application for disability benefits and throughout the course of your claim.
We understand that the process of applying for disability benefits and having your application denied at the outset or at any point in your claim is a frustrating and stressful experience when you need income replacement as a result of being unable to work.
As an insured person, or “claimant”, there are things you should know, or do that can help make your case run smoothly.
Get to Know Your Insurance Policy
You will want to and are entitled to have a copy of your policy, so you can become familiar with the policy and its wording.
You should look for information that answers these questions:
It is important to make notes from every call and keep an ongoing record of all the conversations and contact you have with your insurance company. This will help you to remember a timeline of events for your claim.
As well, take notes of all your doctors, specialists, medications, treatments and symptoms as you will be asked to provide this information when you apply for disability benefits (on the Employee Statement), and by the insurance claims adjuster. This is also information your lawyer will require.
Keep Your Documents
Keep records of everything related to your disability case. You will want to keep a copy of your application package. Important documentation also includes all correspondence received from your insurer, all correspondence sent to your insurance company (including e-mail exchanges) and all copies of medical records relating to your case.
When you hire a lawyer, you will want to provide your lawyer with the necessary documentation relevant to your claim including a copy of your policy, correspondence from the insurance company and a list of your doctors, treatment centres and medications. It is also helpful if you have business cards from your doctors, hospital admission sheets, prescription receipts, and copies of your application for disability benefits.
Requests for Information/Documents
If you are still on claim or have not yet commenced a lawsuit and have not hired a lawyer, be aware that every conversation you have with your claims manager/claims adjuster is documented by him/her. You want to be honest in your conversations with your claims adjuster and give them the necessary information to adjudicate your claim but know that he/she is a representative of the insurance company and is not calling you to become your friend.
When processing your claim, the insurance company may ask you to submit further medical information to substantiate your claim and explain how your symptoms prevent you from working. Your physicians can help you by providing this information, if you give them authorization to. Your insurance company needs to be able to review the relevant medical information, so they can understand why you are unable to work.
As well, in order to understand your medical condition, the insurance company may request you be assessed in person by one of their specialists and you will be expected to attend, unless you are unable to due to medical reasons, supported by your treating physician (s).
Be Honest About How You Feel
It is important to be honest with your doctors about all your symptoms, pains and difficulties you are having and to report any changes in your status. This will help to determine your limitations and restrictions.
When your doctors/specialists can identify your limitations and restrictions, they can provide medical evidence to support them and your claim.
Seek and Attend Treatment
Attend rehabilitation and treatment that is appropriate for your disability, i.e. if you have chronic back pain and physiotherapy is recommended, attend physiotherapy treatments. You must show you are seeking reasonable treatment and be under the care of the appropriate physician for your condition (i.e. a psychiatrist if you went on disability leave for depression).
If you require medication, it is necessary to show that you are compliant with your medication.
It is important in a long-term disability claim to receive ongoing treatment and regularly attend your doctors’ and specialists’ appointments.
If treatment becomes unaffordable, ask your physician if there are any OHIP funded treatments available or find out what coverage you may have through your employer for extended health benefits.
Don’t Just Settle!
Short-term and long-term disability benefits cover claims related to both physical and mental illnesses. It is important to consult a long-term disability lawyer when benefits are denied or if your claim is not being handled properly by the insurance company.
Don’t settle for less. Be sure that if you are offered a settlement it is fair, and you review it with your lawyer. If you are pursuing your claim through your lawyer, your lawyer can assist you in negotiating a fair settlement. An experienced lawyer who practices long-term disability law can assist you in negotiating the best possible settlement.
Hiring a lawyer is an important step to take as lawyers who practice long term disability law know how to interpret insurance policies and understand what specific terminology and clauses mean, and in turn, your lawyer can explain these things to you.
The legal process can seem like an uphill battle at times, but your lawyer is your representative, and will do everything to get you the best possible settlement and fully advocate for your rights as an insured person.
HOW LONG CAN LONG-TERM DISABILITY BENEFITS LAST?
You may have made an application for long-term disability (LTD) benefits as a result of an illness or injury that prevents you from working for a prolonged period of time. Your benefits were approved, but you are wondering how long you will be receiving benefits for.
LTD benefits are a form of income replacement paid to you when you are unable to work due to injury or illness. This benefit pays you a percentage of your monthly income.
Where Can I Find This Information?
The most important information you need to know is contained in your policy, this is why it is very important to review your policy, and if you do not have a copy, to request it from your employer. This includes things like how your policy defines disability (own occupation and any occupation) and at what age the policy ends.
What Factors Affect the Length of Time Benefits Are Paid?
There are several factors that can influence how long you receive benefits for.
The Terms of Your Policy
The duration of your LTD benefits will depend on your insurance policy. Many policies terminate at age 65, but there are policies that have defined periods for payment of LTD benefits, where benefits may only be paid for a maximum of 5 or 10 years.
The Change of Definition
Your insurance company may find you meet the own occupation test (typically 2 years, but be sure to check your policy), and not the any occupation test and terminate benefits at the change of definition.
For reference, the own occupation period is the period of time of where the definition of total disability relates to your inability to perform the duties of your own occupation as a result of illness or injury. The own occupation period in most policies is typically 2 years. When the definition changes to any occupation, in order to be eligible for benefits, you must show that you are unable to perform the duties of any occupation for which you are or may become qualified for by education, training and experience as a result of illness or injury.
At any point in time during the claim, if the insurance company feels that medical evidence does not support that you are totally disabled, benefits could be terminated. The insurance company is looking for evidence that supports your restrictions and limitations and is medically supported by your treating physicians and test results where applicable.
The insurance company expects that you will seek and attend reasonable treatment and be under the care of appropriate physicians/specialists. For example, if you are off work due to a psychological illness, they will expect you to be treated by a psychiatrist or to attend cognitive behavioural therapy and take prescribed medications. If the insurance company’s opinion is that treatment is less than optimal and you are not seeking proper treatment, they might use that as a reason to terminate benefits.
Rehabilitation Plans & Return to Work Plans
If a rehabilitation program or gradual return to work plan has been arranged, the insurance company expects you to make reasonable efforts to attend treatment and participate in the programs. An insurance company might terminate benefits based on failure to comply with a rehabilitation plan or a return to work plan without supporting medical evidence.
REASONS WHY YOUR CLAIM MAY BE DENIED
Benefits can be denied at various stages of a long-term disability claim for a variety of reasons. Here are some common reasons why insurers might deny or terminate benefits.
While assessing your claim, it is within the insurance company’s right to hire a private investigative company to conduct surveillance. Surveillance can include photographs, video and social media/internet searches. Often times, this occurs without your knowledge.
As long as you do not engage in activities that you have been medically advised against doing, surveillance will be of little or no value to the insurer.
If you plan on trying new activities, you should meet with your doctor/treatment provider to first receive medical clearance.
If your insurer believes that surveillance evidence shows you are capable of working because it appears you are engaging in tasks similar to work activities or that show your ability to sustain certain positions, they may use this evidence to deny or terminate your benefits. If you are off work due to psychological reasons and one of your limitations is difficulty interacting with others or concentrating, if surveillance demonstrates you keeping some type of routine, the insurer may interpret this as you being able to function.
Social Media Accounts
Social media accounts are another form of “surveillance” that insurance companies take interest in. Although you may have your Facebook, Twitter, Instagram or other social media platforms privacy settings set to “private’, your public profile may still have photographs or status updates, tagged photographs of you that are questionable.
Social media activity is especially of interest to insurers in claims for psychological illnesses such as depression. Social media is of interest to insurance companies because social media activity can be used to undermine a person’s credibility. Remember, if you can find any content you have created in a Google search, so can your insurance company.
At your initial meeting with your lawyer, it is important to disclose whether or not you a) have social media accounts and b) are active on social media accounts. It is important to know that you should never alter your social media account during a lawsuit. Your lawyer will advise you to preserve your social media as is, even if you plan on discontinuing their use.
Most long-term disability policies have a rehabilitation clause which essentially means that LTD benefits are paid as long as you attend appropriate treatment for your condition, and you are under the care of an appropriate physician. By attending treatments regularly, or participating in whatever treatment was recommended, you strengthen your case and that you are willing to participate in your recovery.
By attending doctors’ appointments and complying with treatment recommendations and taking prescribed medications, you show the insurance company that you do suffer from a valid disability. This also helps establish your credibility.
Restrictions & Limitations
While assessing your claim at the outset or on an ongoing basis, the claims adjuster is looking for evidence of how your disability prevents you from performing the duties of your occupation, and later on the duties of any occupation.
As mentioned earlier in this guide, there are typically two definitions of disability in long-term disability policies and these definitions play an important role in the adjudication of your claim.
The claims adjuster is looking to understand what your restrictions and limitations are as a result of your specific condition.
During an ongoing claim, the claims adjuster may ask a medical consultant to perform a paper review of your file. If the medical consultant does not find evidence of what the restrictions and limitations are, he or she will report this to the claims adjuster.
This is why it is important that your doctors complete the Initial Attending Physician’s Statement and provide medical information/documentation that clearly outlines what your limitations and restrictions are.
An example of a restriction would be a person with severe degenerative disc disease who is unable to push or pull more than 10 pounds. A limitation is a task or action that you can only do for a certain period of time as a result of your symptoms, for example, being limited to walking or standing for no more than 10 minutes at a time due to fatigue caused by chronic pain/fibromyalgia.
Having the right and accurate medical information in your file would ideally help your claims adjuster understand your disability.
Lack of Objective Medical Evidence
It is important for your doctors and specialists to understand how the symptoms of your condition, be it physical or psychological affect you. Therefore, you must be honest with symptom reporting so that your treating physicians can properly document this in your chart.
This is especially crucial for chronic pain and psychological claims. Sometimes, insured persons will receive denial letters that state their claim is denied or terminated as a result of “lack of objective medical evidence”. This is challenging for cases of “invisible disabilities”, such as chronic pain, fibromyalgia, chronic fatigue syndrome, mental illnesses and traumatic brain injuries, where the illnesses/injuries do not show up on blood tests or diagnostic imaging.
Because your insurer cannot “see” the injury or illness, it is harder for them to understand how a person’s functioning is affected. This is why it is important for an insured person to seek treatment, comply with treatment and accurately report symptoms.
WHAT ARE YOUR RESPONSIBILITIES DURING AN LTD CLAIM?
When you first receive an approval letter, it may contain a section that says “Your Responsibilities” or something similarly worded. This information will also be in your policy. Your insurance company has certain expectations of you while you are receiving benefits. The reason the insurance company outlines these responsibilities is because they want you to be aware of what you need to do for benefits to continue and what you should be doing throughout the course of your claim.
These responsibilities generally relate to providing information, facilitating your recovery and pursuing other sources of income.
Make Best Efforts to Recover from Your Injury/Illness
Your insurance company expects you to make a reasonable effort to recover and this includes demonstrating that:
It is important to note that your insurance company will be asking your doctors/treatment providers for information and updates periodically. The insurance company will also contact you for updates on your current treatment and functional status.
Make Best Efforts to Participate in a Rehabilitation Plan
There is an expectation that you pursue rehabilitation options when appropriate. Rehabilitation could involve working with a rehabilitation consultant who creates a rehabilitation plan.
If you are unable to participate in a rehabilitation plan, you are expected to provide medical evidence that demonstrates your restrictions and limitations and how participating in the program will prolong your recovery.
Your claims adjuster may believe that you are or should be able to work in some form in the near future and assign a rehabilitation consultant to your claim. The rehabilitation consultant will meet with you and create a rehabilitation plan.
A rehabilitation plan could include a “multidisciplinary program” to prepare you for a return for work, this could be a program that includes a physiotherapist, kinesiologist or occupational therapist if you have a physical injury or illness and if you have a psychological illness, the rehabilitation consultant might arrange for you to attend cognitive behavioural therapy.
Make Best Efforts to Participate in a Rehabilitation Plan
Your insurance company wants to see you make a reasonable effort to return to work.
In addition to treatment recommended by your doctors and participation in a rehabilitation program, your insurance company may want you to participate in a “gradual return to work” program.
Gradual Return To Work Plan
Your insurance company may contact your employer to explore the possibility of a return to work with modified duties, if available.
If modified duties are available and offered by your employer, the rehabilitation consultant will arrange a gradual return to work schedule and your claims adjust will expect you to attempt to return to work on this schedule.
It is important to remember that your insurance company wants to see that you are actively working towards a return to work, whether at your own occupation, or in an alternate occupation.
Make Best Efforts to Pursue Other Benefits
You may be asked to apply for benefits from other sources that you may qualify for including Canada Pension Plan (CPP) Disability Benefits and to advise your insurer of the outcome of the application. Your insurance company may ask you to appeal any denial of benefits and advise them of the outcome.
The reason you are asked to do this is because your insurance company is allowed to deduct certain sources of income as what is known as an “offset”, such as the CPP benefit from your LTD benefit.
Advise of Any Reportable Income
You must inform your insurance company if you are receiving any income other than your long-term disability benefit in order to avoid an overpayment of LTD benefits.
Examples of Reportable Income Are:
Be sure to check your policy for what counts as reportable income as this affects your benefit amount and if it turns out that your LTD payment needs to be adjusted, you could end up in a situation where your insurance company “overpaid” you and they have to recover money from you.
Advise of Any Changes to Your Health
If you have had any significant changes to your health status, it is important to notify your insurance company as this can affect your ability to participate in any rehabilitation programs or return to work programs.
Significant changes to your medical condition include new diagnoses, new findings on diagnostic imaging or testing or scheduled surgeries.
What if My Claim was Denied?
Even if your claim has been denied or you think it is about to be denied, it is still important to participate in, and seek ongoing treatment and pursue the appropriate treatment options for your condition.
This is particularly important for claims that involve conditions such as fibromyalgia, chronic pain, chronic fatigue syndrome and psychological illnesses. These types of illnesses are difficult to diagnose with objective testing such as bloodwork or diagnostic imaging and this is why it is important to attend regular doctor’s appointments and attend regular treatment so your physicians can determine your limitations and restrictions and document your ongoing symptoms that prevent you from working.
Insurance companies may deny claims for invisible illnesses due to a lack of objective medical evidence or because a person has not participated in treatment/followed treatment recommendations or is not under the care of an appropriate physician.
We hope this guide has helped to give you a sense of how your claim is being assessed and reassessed and what your insurance company is looking for in order to keep paying your benefits.
* 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