These are some of the questions that we have been asked over the years:
Long term disability benefits are benefits that are available under:
A group long term disability policy issued by an insurance company to a policyholder (usually your employer). Employees are covered under these policies as part of their employment provided that they meet the required eligibility criteria. Participation of employees may be mandatory.
An individual insurance policy is a policy that is obtained directly from an insurance company and is a policy more commonly obtained by professionals, self-employed individuals, high net worth individuals and business owners.
Health and Welfare Trusts and Employee Life and Health Trusts which are trusts that are established to by employers or unions to provide eligible members with specific benefits including group sickness or accident insurance plans.
Professional Associations or Chambers of Commerce which may provide long term disability coverage to members. This is usually a group insurance policy rather than an individual policy.
Creditor’s insurance such as mortgage disability insurance which may be available when you take out a mortgage. Many of the banks offer this type of insurance.
Long term disability benefits may only be available after short term disability benefits have been applied for or after you have received salary continuance from your employer or EI sickness benefits.
In many provinces there may be other disability benefits payable under various provincial and federal government programs. These are not the benefits we are referring to when we talk about long term disability benefits.
Here are some of the other benefits that may be available:
In Ontario there is:
WSIB (Workers’ Safety and Insurance Board – Worker’s Compensation for workplace injuries- these can be accessed where an injury has occurred at work and your employer is covered under the WSIB program)
ODSP (Ontario Disability Support Program)
Ontario Works (Welfare)
Federally, there is the Canada Pension Plan Disability Benefit and Employment Insurance Sickness Benefits.
You may have coverage under:
A Critical Illness Insurance policy
Accidental Death and Dismemberment Insurance (AD &D)
Your individual life insurance policy may contain a disability income rider.
It is important to check ALL insurance coverage that you may have if you become disabled due to illness and/or injury.
SISIP or Service Income Security Plan also known as CAF-LTD is a long-term disability benefits plan available to those that have served in the Canadian Armed Forces.
The SISIP Policy defines eligible members as follows:
“Member” shall mean a member of either the Canadian Forces (Regular) or the Canadian Forces (Primary Reserve) while on Class A or B or Reservists on Class C reserve service who fulfills the eligibility provisions and enrollment requirements of this policy, and, where appropriate, also includes a former member of the Canadian Forces who is eligible for Long Term Disability (LTD) benefits under this policy. In addition, it will include a former member of the Canadian Forces who is eligible to participate in either the Post Retirement Continuation Plan (PRCP), the Coverage After Release Plan (CAR), the Military Post Retirement Life Insurance Plan (MPRLIP) or the Insurance for Released Members plan (IRM).”
For more information you can review: CFMWS | SISIP Financial | Insurance, investments, saving and financial counselling for Canadian Armed Forces members and spouses | CFMWS and https://cfmws.ca/insurance-finance/sisip-financial-policies, which contains a copy of the policy document.
If you suffer an accidental dismemberment or loss of sight, hearing, or speech, attributable to military service, you may have entitlement to a dismemberment benefit.
The Chief of the Defence staff and the Department of National Defence are the policy holders, SISIP Financial is the administrator and Manulife is the insurer.
CAF members and prior members should also consult Veterans Affairs Canada for information on additional benefits that may be available. Questions and answers – Veterans Affairs Canada.
At our firm we have represented members of the CAF, particularly female members of the CAF in disputing the denial of their disability claims by Manulife Financial.
Teachers and support staff in Ontario may be entitled to coverage under the Trustees of the Ontario Insurance Plan (“OTIP”). As of January 1, 2020, the Trustees of the Ontario Teachers Insurance Plan (OTIP) assumed management of the long-term disability benefits plan which was previously insured under Manulife Financial. The plan is now self-insured which means benefits are paid for and managed by OTIP.
If a long term disability benefits claim was submitted prior to January 1, 2020, it will fall under the prior OTIP/Manulife regime where claims and appeals were adjudicated by OTIP and Manulife.
When you appeal a long-term disability benefits denial or termination under the new regime, the Appeal Committee consists of the case manager/disability analyst with a senior quality assurance representative from OTIP and a medical doctor. Manulife no longer has any involvement in adjudication of new claims submitted as of January 1, 2020.
We have noticed a significant change in how OTIP is managing claims and dealing with litigation since January 1, 2020.
If you would like to know more about the changes, please contact our office. We have extensive experience with OTIP applications, appeals and litigation.
We have assisted individuals employed with the following school boards:
Algoma District School Board
Lakehead District School Board
Avon Maitland District School Board
Greater Essex County District School Board
Lambton Kent District School Board
Thames Valley District School Board
Durham District School Board
Toronto District School Board
Kawartha Pine Ridge District School Board
Trillium Lakelands District School Board
York Region District School Board
Simcoe County District School Board
Upper Grand District School Board
Peel District School Board
Halton District School Board
Hamilton-Wentworth District School Board
District School Board of Niagara
Waterloo District School Board
Ottawa-Carleton District School Board
Renfrew County District School Board
Hastings and Prince Edward District School Board
Bruce-Grey Catholic District School Board
Huron-Perth District School Board
Many of the Catholic District School Boards
The Ontario Medical Association or OMA provides customizable insurance products to Ontario physicians. Amongst its insurance offerings, OMA offers Accidental Death and Dismemberment Insurance, Critical Illness Insurance, Disability Insurance, Life Insurance and others.
In so far as disability insurance options are concerned, the insurance can in appropriate circumstances be customized to include things like own occupation riders, cost of living adjustment riders, guaranteed insurability benefit riders, retirement protection riders, coverage extension beyond age 70.
To find out more about some of these riders, see below. (link to difference btw group and individual)
The Public Service Management Insurance Plan (PSMIP) provides disability benefits coverage to public service employees who are in managerial or confidential positions or members of certain designated groups.
To understand more about this plan and how it integrates with PSSA, CPPD, workplace injury benefits and other group plans, please contact our office.
Information regarding your disability benefits coverage may be contained in a benefits booklet, an insurance policy or an insurance plan or sometimes, you can find details of your benefits in your Collective Bargaining Agreement if you are a unionized employee.
You can contact your insurance company, your plan administrator or your employer to obtain a copy of your insurance policy or plan. Your insurance policy or plan is a legal document that is usually dated and signed and has a policy or a plan number. You may be able to access your policy or plan document online.
When you were hired, you may have received a benefits booklet. Please note that the booklet contains a summary of benefits coverage and is not the same as the legal document that is your insurance policy or plan.
If you have made the request for a copy of the policy or plan and the insurer and/or employer are refusing to provide one to you, please contact our office.
You can usually request an application package from your employer, union, or association. Claim forms can also be requested from the insurance company directly and sometimes forms can be downloaded from the insurance company’s website or a designated portal. If you are an individual policy holder, you can request forms from the insurer directly or you can ask your insurance broker for assistance.
After you have submitted your claim for short term disability benefits, or received salary continuance or EI, it is important to determine whether you need to submit an official application for long term disability benefits to avoid delays in the claims process.
There are times when short term disability claims will automatically transition to long term disability, other times you may need to submit an application for long term disability benefits.
If your short term and long-term disability carriers are different companies, you should submit a claim for long term disability even if your short-term disability claim was denied. If the short-term disability carrier advises you differently, please contact our office.
Long term disability insurance policies may contain “proof of claim” or “notice” provisions which require the submission of forms within a specified timeframe. Failure to do so could result in a denial of benefits due to late filing.
For group disability insurance claims, the Application Package usually consists of three main forms:
A Claimant’s Statement also known as an Employee Statement or Plan Member’s Statement (this is completed by the person making a claim);
A Plan Sponsor Statement also known as an Employer Statement or Policyholder Statement (this is completed by the employer/policyholder); and
An Attending Physician Statement (this is completed by the medical treatment provider).
If you are submitting a claim under an individual or private insurance policy, there will be different forms to fill out. If you require further information on this, please contact our office.
There is no list of prescribed conditions that qualify for disability benefits coverage. The real question is whether the symptoms you are experiencing due to your medical condition/s impact your ability to function in the workplace. We have represented clients with varied physical and mental conditions over the years. (link to list of conditions)
You might be surprised to know that a diagnosis is not a requirement for a disability claim despite indications by insurance companies to the contrary.
When completing forms for your disability benefits claim, consider how you are impacted by your symptoms. Consider your occupational duties from a physical, cognitive, emotional and interpersonal perspective and then consider how your symptoms impact you in each of these realms.
Ensure that all information relevant to your medical issues is provided. Include as much medical information as possible so that the insurance company has a full picture of all the medical issues, functional restrictions and limitations preventing you from working.
Be clear in explaining why functional limitations and restrictions prevent you from performing in the workplace or workforce.
If your insurance company has advised you that your claim is denied due to insufficient medical evidence or lack of “objective” medical evidence, or for any other reason related to your medical condition, please call our office.
Many people believe that their diagnosis should be the final determination of entitlement to disability benefits, but that is not where the inquiry ends. Understandably, people are surprised when their claims are denied even though they have been diagnosed with a serious medical condition including conditions like cancer or Multiple Sclerosis.
In many cases, simply sending in a letter from your doctor documenting your diagnosis will not automatically generate a claim approval. What the insurance company is looking for is more detailed information and a deeper understanding of the impact of your condition on your functional abilities.
Conversely, if you do not have a diagnosis, it does not mean that you should not apply for disability benefits or wait until you have a diagnosis before applying. If you have symptoms that are preventing you from performing your occupational duties, you should apply for disability benefits even if you do not yet have a diagnosis or may never receive a definitive diagnosis.
Over the years we have had many clients whose medical issues were in the process of being investigated. They may have received several differential diagnoses (a list of possible conditions or diseases that fit their symptoms) but there is still no definitive diagnosis.
In the absence of a specific diagnosis, if you are able to prove you have a condition that is preventing you from functioning in the workplace, you may be able to get your claim approved even without a diagnosis.
Delaying an application while you wait for a definitive diagnosis could result in a claim denial on the basis of late filing.
Whether you have received a diagnosis or not, it is important to continue with any ongoing treatment as this will help prove that you are suffering from symptoms that are functionally disabling. The required frequency of treatment will often depend on the nature of the medical condition.
If you are not going for treatment and you are not seeing doctors and specialists, you may not have the medical evidence you need to support your disability claim.
Depression or burnout may be considered a disability if the symptoms you experience because of your depression or burnout affect your ability to function in the workplace.
Insurance companies often contest disability claims based on depression or burnout. This is largely due to the “subjective” nature of claims based on depression. Depression claims are “subjective” in nature as there are no diagnostic tests that can confirm a diagnosis of depression, and the insurers see the condition as largely based on the claimant’s self-reporting of symptoms. It is not uncommon for insurers to deny depression disability claims on the basis that there is no “clinical” or “objective” evidence of impairment.
Insurers base their decision to pay disability benefits on several factors beyond your doctor having given you a diagnosis of depression or burnout. In doing so, the disability insurance carrier is attempting to determine whether your condition is severe enough to meet the applicable test for disability under your disability insurance policy.
Among the factors that insurers consider when evaluating disability claims based on depression or burnout:
The type of treatment providers you are consulting with.
The frequency and course of your treatment.
The number of times per week or month you see your psychiatrist and/or psychologist.
The type of medications that you take.
Whether your medication is being adjusted up or down.
What programs you are participating in.
If you are not seeing a mental health professional, the insurer may argue that you are not participating in appropriate treatment which could, in certain circumstances, result in a termination of your disability benefits.
When considering what constitutes appropriate treatment, it is important to understand that there are different types of treatment providers that treat mental illness.
Psychiatrists are licensed medical doctors and can prescribe medications, which they may do at times in conjunction with psychotherapy.
Although psychologists hold the title “doctor” they do so because they hold doctorate degrees and not because they are medical doctors. Psychologists cannot prescribe medications but focus primarily on psychotherapeutic techniques which may include cognitive and behavioural interventions.
Social workers and psychotherapists also provide treatment for depression in the form of counselling services and emotional support. Insurers consider the type of treatment provider you are seeing when they evaluate the severity of your depression claim.
In determining whether you meet the test for disability under the policy, your insurer may examine your reported symptoms and activity levels. The insurer may undertake a review of your clinical notes and records to determine your functionality. They may even search your social media pages or conduct surveillance on you.
As such, ensure you always advise your treatment providers of the challenges you experience because of your depression. Provide detailed accounts of how your symptoms affect your ability to function and ensure that you are always honest and consistent when reporting symptoms to your doctors and the insurance company.
Insurers may terminate a disability claim when they see an improvement in your condition. Improvement is, however, relative and a change in condition does not always equate to an ability to return to work. If your doctors are reporting that your condition has improved, ensure they also explain why you remain unable to work despite any perceived improvement in your condition.
If your depression or burnout claim has been denied, please call our office.
Many people do not think of consulting a disability lawyer when their employment is threatened or they are fired due to workplace absenteeism, poor performance or the interpersonal challenges that stem from alcohol or drug dependency.
In some instances when employers discover that employees are abusing alcohol or drugs, they use the knowledge to create a punitive scenario when it really should be considered in the context of whether it might be an illness or disability. If it is considered in this context, there is an obligation on an employer to accommodate the employee where appropriate and not to discriminate against the employee or terminate their employment on the basis of disability.
There is an obligation on the employer under many provincial human rights legislative regimes to accommodate a disability and applying for long-term disability benefits may, in certain circumstances, allow you to preserve your job while you pursue treatment. Failure to pursue a disability claim could result in performance management which could lead to employment termination and result in an inability to pursue disability benefits due to a termination of insurance coverage.
If you have an alcohol or substance abuse disorder and you are not able to function in your job, you may wish to consider applying for disability benefits.
Once claimants have been approved, we find that some the insurance companies may approach substance abuse cases within a medicalized perspective. The insurance company may terminate the disability benefits claim once the claimant has completed a detoxification program and will clear them to return to work.
Many of the cases we see involve insurers refusing to pay a claim if the employee is not in or is no longer in an inpatient program. The insurer may be relying on specific wording in a particular insurance policy. We have successfully argued that disability insurance companies need to take into consideration that after-care programs are just as, or if not more, important than the inpatient programs.
If your claim for disability benefits has been denied once you are no longer receiving inpatient treatment, please contact out office.
Having a diagnosis in a disability claim does not automatically lead to benefit approval nor does the lack of a diagnosis necessarily mean you are not entitled to file a claim.
Proving an insurance claim can sometimes be difficult, especially in the absence of a medical diagnosis. Long-haul COVID is a prime example. Many long-COVID claims are being denied because people cannot prove that they contracted COVID.
Even having a diagnosis is not a guarantee that an insurance claim will be approved. Proof of a positive COVID test or vaccination side effects does not guarantee claim approval largely because disability is not based solely on a diagnosis.
A finding of disability in accordance with a disability insurance plan or policy is based on an assessment of functionality. The analysis involves determining whether you have symptoms that are medically verifiable and whether those symptoms prevent you from being able to function in the workplace.
Ultimately, it all depends upon how your symptoms are manifesting and how the manifestation of your symptoms correlates with the occupation you were engaged in at the time your symptoms arose.
It is not the diagnosis itself that designates the disability, it is how that diagnosis affects you and impacts your ability to function, that is assessed.
Someone suffering from long-haul COVID may be dealing with cognitive fatigue or impairment. If their job requires them to use cognitive skills and concentration, such as data entry or accounting, their ability to work will be impacted by their symptoms.
Treatment compliance is particularly important with “invisible disabilities”- conditions that cannot be detected on diagnostic imaging or with a blood test and the severity of which cannot be verified with testing. Long-haul COVID claims may fall into that category especially if the main complaints include chronic fatigue, lack of endurance or psychological and cognitive impairments.
If your long COVID/long-haul COVID or vaccination side effects claim has been denied, please contact our office.
Many people believe that they are not disabled enough to apply for disability benefits and insurance companies perpetuate the myth that in order to apply for disability benefits you essentially have to be completely bedridden. Couch on Insurance (1983), 2d (Rev. ed.) §53:118 states the following:
“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 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 all work, he is totally disabled within the meaning of health or accident insurance policies.”
If you have symptoms that prevent you from being able to perform your occupational duties, it is important to determine whether you would be eligible to apply for disability benefits.
There are risks associated with not making a claim at the appropriate time. For instance, if you have reduced your hours on an ongoing basis while trying to continue working, this could impact the income used to calculate your disability benefit entitlement whether you are dealing with a group disability benefit claim or an individual disability benefit claim.
It is important to include supportive medical records with the application forms. There is a mistaken belief that claimants are limited to providing only the claim forms when they initially apply for benefits.
Many healthcare professionals are under the impression that they are prohibited from providing detailed information to the insurance company to protect a patient’s privacy. They may simply make a note indicating “injury” or “illness” or “mental health issues” as the diagnosis or disabling condition or they may provide a diagnosis but with minimal information regarding restrictions and limitations.
Many claims are denied because the claimant and treatment providers have not submitted enough information to allow the insurance company to understand how the claimant’s symptoms prevent them from working.
The likelihood of an initial approval of benefits is significantly enhanced with the submission of supportive medical reports at the outset. Medical evidence is required to substantiate a claim for long term disability benefits. Medical evidence could consist of diagnostic imaging such as x-rays, MRI’s and blood tests but medical evidence can also consist of information contained in the medical records and reports of your doctors and specialists that provide information as to your symptoms and how they impact your ability to function on a day-to-day basis.
Information as to the severity, intensity, frequency and duration of symptoms and their impact on functional abilities is often what the insurance company is looking for. This can be provided through a report prepared by a treatment provider or by highlighting information in clinical notes and records that indicates that the claimant is suffering from a debilitating medical condition.
Communicating with an insurer is very different from communicating with an employer. In communicating with an employer, due to privacy reasons, a treatment provider is not required to provide detailed accounts of the individual’s medical issues.
This may be slightly different in cases where an employee is seeking accommodations in the workplace but even then, employers are required to limit requests for medical information in the workplace to those reasonably related to the nature of the employee’s limitations or restrictions, as necessary to respond to accommodation requests.
The same does not apply to communications with the insurance company. Providing the insurer with more extensive information can often facilitate the approval of a claim. The insurance company is not permitted to share the claimant’s medical information with the employer.
Usually once you have submitted your application, the insurance company will open a file for you in which your application forms will be placed. This is known as your claims file. An administrator will set up your claim and it will then be assigned to a disability case manager (sometimes called a Disability Claims Analyst or Abilities Case Manager). The case manager may do some preliminary investigation such as reviewing your application forms, looking at your policy and contacting your employer to confirm certain details regarding your occupation and your workplace.
Most of the time, once your claim has been set up and a case manager has been assigned, the case manager will contact you and conduct an initial interview. The case manager may ask you several questions including, questions about your medical conditions, the duties of your occupation, your treatment and medications, your restrictions and limitations and how these affect your ability to perform your occupation and your activities of daily living.
The case manager may write to your treatment providers to obtain additional medical information, or the case manager may ask you to provide additional medical information.
The case manager is required to review all aspects of your claim and make a determination as to whether you qualify for disability benefits in accordance with the applicable test for disability under your policy or plan.
It is a good idea to keep detailed notes of your conversations with your case manager including the date and time of the call and the details of the individual with whom you spoke. It is also important to keep a record of the content of your conversations with the case manager. This may be helpful to you at a later point if you need to take steps against the insurance company. You can also send an email to the case manager confirming your understanding of a conversation in which the case manger conveyed important information to you.
Case managers are often dealing with multiple claims and may not be able to respond to you when you call. It is a good idea to send an email each time you have left a voicemail message for the case manager or when you have sent documents to the case manager in order to maintain a paper trail of your efforts to get in touch with the case manager.
If your case manager is behaving in an improper manner, you can contact their supervisor or team leader to complain about their conduct. You should remain respectful in this interaction and document your concerns factually. You can also contact the office of the Insurance Ombudsman if your concerns are not addressed.
Although you should be truthful with the insurance company, do not forget that all individuals that you communicate with at the insurance company work for the insurance company and will likely protect the insurance company’s interests before they protect yours. The insurance company may not always be entitled to all the information they are seeking from you.
If you are having issues with your case manager or confusion about what information you should be sharing with the insurance company, please contact our office.
The insurance company has an obligation to adjudicate your disability claim on an ongoing basis.
In most claims, insurance case managers will contact you regularly to obtain updates on your condition or your treatment modalities.
They may require additional medical information from your doctors, they may wish to arrange an independent medical assessment or initiate a rehabilitation program.
If the insurer’s request for information feels excessive or unreasonable, or if your communications with the case manager are causing you extensive stress, please contact our office.
Not pursuing appropriate treatment or following your doctors’ advice
Most long-term disability insurance policies require an insured to be receiving “appropriate treatment” or “regular care”. A failure to pursue appropriate treatment or failure to follow your doctors’ recommendations can in certain circumstances result in the insurance company terminating your benefits even though you continue to remain unable to work. Medical treatment should commence with the onset of medical issues and should be as frequent as the condition requires.
Lack of Communication
Repeated failure to respond to the insurance company can result in a termination of your disability benefits for lack of cooperation. There are however times when the insurance company may be treating you inappropriately or their demands are excessive and unreasonable.
Missing deadlines
Many long-term disability policies contain “proof of claim” provisions which require a claimant to provide information to the insurer within a specified time period. If you fail to provide the information on time, you could find your claim denied for late filing or terminated for failure to comply with a request for information.
Once your claim has been approved and you have been assigned a case manager, reach out if you are struggling to meet a deadline. It may be that you are unable to obtain an appointment with your doctor or specialist or your doctor or specialist is unable to provide information within a short window due to prior commitments. Provide an explanation to your insurer for the delay and request an extension of time.
Failure to disclose relevant information
Failure to disclose certain information to the insurance company could have detrimental consequences for you. For instance, if you have returned to work or if you have completely recovered and you fail to inform the insurance company, the insurance company could accuse you of fraud if you continued to receive benefits in these circumstances. They may initiate proceedings against you to recover an overpayment of benefits.
In most disability insurance policies or plans, the insurance company has the right to send you to a doctor of their choosing for a medical examination or assessment. The insurer will attempt to locate a specialist doctor that deals with the medical issues you are contending with.
If you have made a claim for disability benefits based on mental illness, the insurer might send you to a psychiatrist, or the insurer may arrange for a psychological or neuro-psychological evaluation.
A neuro-psychological evaluation is more frequently arranged when you report issues with cognitive impairment (memory, concentration, focus) or reduced executive functioning related to your mental illness. Insurers often use neuro-psychological assessments to determine the validity of a claim as the neuro-psychological assessor can administer tests with validity indices embedded in them.
An Independent Medical Examination or “IME” is an assessment that is arranged for you by your disability insurance company.
The role of the IME doctor is to provide an opinion to the insurance company on your symptoms, restrictions and limitations. An IME doctor is not hired to provide you with any treatment. The IME doctor may also be requested by the insurance company to provide an opinion on your level of disability, treatment recommendations, and your diagnosis and prognosis.
If you wish to discuss concerns that you may have regarding your upcoming IME, please contact our office.
If you are travelling on vacation for a short period of time (shorter than a month) there should be no issues with travelling unless you are in the middle of a return-to-work program. It is a good idea to review your policy document to see what it states about being out of the country. There may be a clause in the policy that prevents you from receiving benefits after you have been out of the country for a certain period of time.
If you do intend to travel, it is important that you have discussed your plans with your doctor and received permission to travel. Your doctor may even recommend that you take a vacation for health reasons.
If you plan on taking a vacation, you should also advise the insurance company beforehand and advise them that your doctor has approved or recommended that you travel.
It is not illegal for an insurance company to conduct surveillance. In fact, it is a common tool used during the adjudication process. Insurers believe that surveillance may provide more accurate, unbiased information of a claimant’s functional abilities as the insured is unaware that they are being observed. Surveillance may be used to attack credibility and it may be used in conjunction with questionnaires filled in by claimants or telephone discussions with claimants.
Investigators hired by the insurance company are allowed to conduct surveillance outside your home. Investigators hired by the insurance company can follow you during the course of your day. They can take photographs and video footage, as long as it is not in your home. Investigators cannot enter your home or plant recording devices or tracking devices. Investigators are not permitted to contact you directly or to harass you.
Surveillance is more common when you reach a milestone in your claim such as the change of definition or where you may be attending an independent medical evaluation. If the insurer sees something in your medical records or on your social media posts that gives rise to inconsistencies, it may initiate a request for surveillance.
The best way to deal with surveillance is to be aware that it may be conducted and to be honest and consistent with your doctors and the insurance company.
Insurance companies are relying more in recent years on social media to obtain information about a claimant and investigate claims. Even with sites that do not have public settings, insurers may engage investigators to obtain information from social media postings. Several court decisions have determined that content posted on sites such as Facebook may be producible evidence where is it relevant.
Most group long term disability policies contain a two-part test for disability. The first part of the test (usually but not always a 24-month period) requires you to prove that you are unable to perform the duties of your own occupation. An occupation is different from job. For instance, someone may be a nurse, that is their occupation, but working at a hospital and as a telehealth nurse are two different jobs.
The change of definition is when the test for disability under the insurance policy shifts and the question is no longer only whether you can perform the duties of your own occupation but whether you are unable to perform the duties of any occupation based on your education, training and experience.
It is very important to ensure that you have the policy wording regarding these tests for disability because there may be slight differences from policy to policy.
Individual insurance policies, OMA policies and other professional policies and some executive policies may contain an “Own Occupation Rider” which ensures that the test is always whether the insured is able to perform the duties of their own occupation.
Where there is a Change of Definition under the policy It is not uncommon to receive letters from the insurance company warning about the upcoming date of the change.
Leading up to the Change of Definition, the insurance company may increase its adjudication efforts. It may request additional medical information, initiate rehabilitation, send a claimant for an independent medical assessment, conduct surveillance, initiate a field investigation, have the claimant complete questionnaires or ETE (Education, Training and Experience) forms and conduct TSA’s (Transferrable Skills Analysis) or vocational assessments.
If the insurer is threatening to terminate your benefits at the Change of Definition or if your benefits have been terminated, please contact our office.
Many people are aware of Canada Pension Plan retirement benefits, but they are not as familiar with the Canada Pension Plan Disability (“CPPD”) benefit. The CPPD benefit is a monthly, taxable benefit payable to those under age 65 who have made valid contributions and have a severe and prolonged mental or physical impairment that prevents them from performing any gainful occupation. According to the applicable legislation, a person is considered to have a severe disability if they are regularly incapable of pursuing any substantially gainful occupation. Prolonged means the disability or impairment is long-term and of indefinite duration or is likely to result in death.
You can obtain application forms from the government website at Canada Pension Plan disability benefits: Apply – Canada.ca. Instructions for submitting the application can be found on the website. Each year there is a maximum and minimum monthly amount payable for CPPD benefits. You can obtain an estimate of your disability benefit amount from Service Canada. There may be additional amounts paid for eligible children under age 18.
If your CPPD claim has been denied, there is an opportunity to appeal. The first level of appeal is to apply for a reconsideration. This must be done within 90 days of the denial. If the reconsideration is denied the next step is to appeal to the Social Security Tribunal (“SST”).
Most long-term disability group insurance policies contain offset provisions which permit the insurance company to deduct CPPD benefits from your long-term disability benefit each month. The amount deducted is the original amount that you were approved for as most disability policies do not allow the insurance company to deduct the cost of living increases in your CPPD benefit that you may receive each year. The insurance company can deduct the gross amount before taxes have been deducted.
In some cases, the insurer may terminate your benefits if you fail or refuse to apply for CPPD benefits. Your long-term disability insurance policy may specifically state that you are required to apply for these benefits and by law you do have an obligation to mitigate (make efforts to seek alternative benefits available to you).
Your long-term disability policy may also state that the insurer can estimate the benefit amount you would receive from CPP even if you are not actually receiving it. The insurer can then deduct the estimated amount from your long-term disability benefits.
Applying for CPPD benefits does not reduce your retirement allowance as receipt of CPPD benefits provides the explanation for your failure to contribute to the CPPD program on an ongoing basis. Once you are approved for CPPD benefits there is the possibility that if you continue to qualify, you can receive these benefits until age 65 when they convert to retirement benefits.
If you are in receipt of CPP Disability benefits and your health improves to the extent that you can return to the workforce or commence retraining, you should report that to Service Canada. Service Canada will work with you to determine whether you continue to be eligible or whether your benefits terminate. You can earn up to a certain amount per year without losing your disability benefits. CPP may also have programs that can assist you with the return to work process such as the CPP Disability Vocational Rehabilitation Program.
If you are in receipt of benefits and you are approved for a retroactive payment from CPP, you may have signed documents (Consent and Deduction to Pay) which will allow the insurer to receive repayment of the amounts that they paid for the overlapping periods directly from Service Canada. Alternatively, the insurer may indicate to you that there has been an overpayment for the overlapping periods and ask you to repay the overpayment amount. If you do not repay the CPP amounts to the insurer they may terminate your benefits or reduce your benefits until the overpayment has been satisfied.
A determination by the insurer that an insured is “totally disabled” from his or her “own occupation” or from “any occupation” and therefore entitled to benefits, does not mean that an insured is automatically entitled to continue receiving benefits to the maximum benefit under the policy. There is an obligation on the insured to make reasonable efforts to rehabilitate which means engage in efforts to seek treatment or attempt a return to employment where appropriate.
If benefits have been approved, your case manager may request the services of a rehabilitation consultant (who can be an employee of the insurance company or an outside party) to formulate a rehabilitation program. The purpose of a rehabilitation program is to ultimately get you back into the workforce, whether it is in your previous job or in an alternate occupation. Rehabilitation consultants may arrange for treatment, work hardening programs or a graduated return to work plan. If you refuse or fail to participate in an appropriate rehabilitation or return to work program, it could result in the termination of your benefits.
If you are unable to participate in a rehabilitation or return to work program or your doctor does not recommend that you participate in a rehabilitation or return to work program as suggested by the insurance company, it is very important for you to consult with a lawyer.
The issue of accommodations may come up before a disability claim has been commenced or when you are attempting a return to work after you have made a disability claim. Your employer is required to accommodate you to the point of “undue hardship”. This is a fairly extensive obligation that requires employers to take on extra steps in order to promote a fully integrated workplace.
There is no specific guideline as to what constitutes “undue hardship” and it really depends on the circumstances of the employer and the employee. Undue hardship exists when the steps required to accommodate the employee are so extreme or difficult that it is unreasonable to expect the employer to implement them.
The employer must gather appropriate information, consult with you and your treatment providers and you need to work together to create an appropriate accommodations plan. As an employee you have obligation to cooperate with the employer in the accommodations process. This involves communicating to the employer the need for accommodations and providing relevant and appropriate medical information to support the request for accommodations. You need to consider options that may be presented by the employer. Rejection of reasonable accommodations proposed by the employer could potentially impact an assessment of whether the employer has met its legal obligations to accommodate you.
An employee seeking accommodations should disclose the general nature of their disability and any restrictions and limitations sufficient to allow the employer to properly accommodate them or determine the legitimacy of a requested leave of absence.
Employees have a right to privacy regarding their medical information. An employer does not have a right to full disclosure of the employee’s medical situation. An employer must make every effort to ensure the maximum medical privacy possible when determining accommodations.
There are very limited circumstances when an employer is entitled to the actual diagnosis and most of the time this is not required.
If you are unable to work even with accommodations, you may need to consider applying for disability benefits.
Some examples of accommodations may include:
A graduated return to work after a medical leave.
Working from home.
Flexible work hours for example to attend medical appointments.
Part time work to accommodate fatigue or cognitive impairments.
Physically modifying the work environment utilizing ergonomic assessments
Changing job tasks to make them less onerous.
Incorporating assistive devices and technology – talk to text, speech recognition software, closed captioning.
If you have made a claim for disability benefits you may be curious as to whether your employment can be terminated by your employer. Many claimants believe that making a claim for disability benefits automatically protects them from a termination of their employment.
Employers may terminate employees on disability as part of a “general restructuring” process. (Unfortunately, this is often an easy way for employers to disguise the termination of an employee on disability as “legitimate”.) If your company is indeed going through organizational changes and a termination forms part of an overall restructuring process, the termination may not be wrongful or discriminatory provided the employer has offered the appropriate severance package as required by law and the decision to terminate was in no way motivated by disability. However, other circumstances and scenarios exist where the termination of an employee who is on a disability leave can be deemed to be both wrongful and discriminatory.
You may have been told by your employer that you are being terminated for ‘just cause’. To support this termination, your employer may be relying on instances of poor performance, frequent absenteeism, lack of appropriate communication or insubordination.
If it is determined that there is, in fact, just cause for termination, the employer is not obligated to pay out termination or severance pay under the Employment Standards Act or any pay in lieu of notice under common law. Proving termination on the basis of “just cause” is a high threshold for the employer to meet. If your employer has alleged “just cause” as the reason for termination, the termination should be carefully examined especially if you are suffering from any kind of disabling medical condition. If your conduct in the workplace is in any way due to medical issues, your employer will have a very hard time supporting a “just cause” termination.
If your employment was terminated for any reason that is directly related to your disability, there is a strong possibility that the termination would be considered a human rights violation. Even if the decision to terminate was based in part on a prohibited ground such as disability, it could be found to breach human rights legislation.
An employee receiving disability benefits could also be terminated from their employment on the basis of “frustration of contract”. This occurs when an employee is medically incapacitated to the point that the contract of employment can no longer be fulfilled or performed. The employer must prove that there has been a “frustration” of the employment contract. Individuals are frequently terminated prematurely for “frustration of contract” even though there is insufficient medical evidence to support a permanent impairment preventing a return to the workplace. “Frustration of contract” is a legal concept and all facts and circumstances must be carefully evaluated to determine if the employment termination on this basis was legitimate.
Termination of your disability benefits claim by an insurance company does not automatically end your employment relationship with your employer. Your employment relationship could continue even after your disability benefits claim is terminated by your insurer.
IF YOUR EMPLOYMENT HAS BEEN TERMINATED AND THE EMPLOYER HAS ASKED YOU TO SIGN A RELEASE OR SOME FORM OF SETTLEMENT DOCUMENT IN RETURN FOR ANY PAYMENT, PLEASE CONTACT A DISABILITY LAWYER BEFORE YOU SIGN TO MAKE SURE THAT NOTHING THAT YOU SIGN IN THE RELEASE DOCUMENT WILL AFFECT YOUR ONGOING ENTITLEMENT TO DISABILITY BENEFITS.
Termination of your employment can result in immediate termination of insurance coverage. Your employer may provide an extension of disability insurance coverage during an applicable notice period. You may still be able to submit an application for disability benefits in certain circumstances after your employment has been terminated. It is however important to contact a lawyer immediately to protect your rights once you have received an employment termination or if you suspect that your employment may be terminated.
IF YOUR EMPLOYMENT HAS BEEN TERMINATED AND THE EMPLOYER HAS ASKED YOU TO SIGN A RELEASE OR SOME FORM OF SETTLEMENT DOCUMENT IN RETURN FOR ANY PAYMENT, PLEASE CONTACT A DISABILITY LAWYER BEFORE YOU SIGN TO MAKE SURE THAT NOTHING THAT YOU SIGN IN THE RELEASE DOCUMENT WILL AFFECT YOUR ONGOING ENTITLEMENT TO DISABILITY BENEFITS.
Long Term disability insurance policies often have “Proof of Claim” or “Notice” clauses that provide a time frame within which a claim for long term disability benefits should be submitted to the insurance company which starts to run from the date of disability. A claim that is filed late can be denied by the insurance company.
Insurance companies incorporate these clauses into the long term disability policies as they wish to be notified of a claim as soon as possible. Insurers often argue that it is prejudicial to them to receive a claim after a long delay as it prejudices their ability to properly manage the claim. Depending on the extent of the delay and reasons for the delay, there are often legal arguments that can successfully overturn decisions of this nature.
An insurance company might deny benefits based on a contractual exclusion. One of the most common reasons for denying claims based on a contractual exclusion is based on the “pre-existing condition exclusion clause”. The pre-existing condition exclusion will usually apply if an individual makes a claim for disability benefits within the first year after their insurance coverage took effect (this time period could vary, but it is typically the one year period after the effective date of coverage).
If the insurance company determines that you saw a doctor or had any treatment related to your disabling condition prior to when your insurance took effect, the insurer may deny the claim based on the pre-existing condition exclusion.
This is a very technical area which turns on the interpretation of the specific clause in the long term disability policy and the medical records.
Fibromyalgia, concussion, migraines, endometriosis, IBS, chronic pain, chronic fatigue, mental illness are some examples of conditions where there may not be “objective evidence” of disability. Generally, these conditions cannot be “verified” through diagnostic imaging or “objective” tests of any kind such as x-rays, MRI’s, blood tests, Functional Abilities Evaluations and so on.
Insurers may argue that symptoms are self-reported, cannot be assessed and therefore do not equate to disability.
The insurance company may artificially insert a requirement for “objective medical evidence” when a policy does not actually require that, or a condition cannot possibly be assessed using “objective evidence”.
There are many ways to fight these denials.
Some sources of income include:
Employment Insurance (EI) Sickness Benefits
Canadian Pension Plan (CPP) Disability Benefits
Ontario Disability Support Plan (ODSP)
Ontario Works (OW)
You may also wish to investigate the Disability Tax Credit. We have some resources that we can share with you regarding this benefit if you contact our office.
In certain circumstances it may be possible to obtain a litigation loan which is a loan that is repaid with interest once your case resolves or is successful.
Some people, due to dire financial circumstances, will force themselves to continue working even though they are no longer able to do so and even though it may be detrimental to their health and well-being.
We encourage you to speak with a lawyer to determine what steps can be taken to protect yourself financially.
You may still have coverage for extended health and dental benefits even if your disability claim is terminated, as long as you remain an employee and your employment has not been terminated. There is a possibility that your employer might ask you to pay for the premiums associated with your medical and dental benefits coverage when you are no longer receiving long term disability benefits and remain on a leave of absence. In some situations, medical and dental benefits coverage will be terminated by your employer when your disability benefits are terminated or denied. This is a decision that is being made by your employer not the insurance company. This is an employment related issue.
When disability benefits claims are denied or terminated, unfortunately many people walk away and decide not to pursue their claim. They may believe that they cannot contest the decision of a large and powerful insurance company or that there is no way to contest the insurance company’s decision.
If a disability benefits claim has been denied or terminated, one option would be to pursue an appeal through the insurer’s internal appeals process. This option may have been offered by the insurance company. Most insurance companies will provide a letter setting out a list of documents that the claimant or healthcare professional would need to submit to appeal the decision. Once received, the insurance company will review the new documentation submitted and decide whether the new information is sufficient to change its decision and reinstate or approve benefits.
If the appeal is successful, benefits will be paid from the date the insurance company stopped paying benefits or from when the claimant was first entitled to receive benefits. The claimant will then continue to receive disability benefits on a monthly basis, so long as they continue to meet the definition of disability and other conditions in the policy.
Since the appeals process is a process designed by the insurance company and the insurance company benefits financially if it does not have to pay your claim, the likelihood of your claim denial being overturned on appeal is not very strong unless there is significant information that was not provided to the insurance company initially. If you have received a new diagnosis or seen a new specialist since your claim was denied, it may be worth attempting the appeals process.
The initial appeals process is similar to a reconsideration process where the case managers essentially run their decision by a team leader or supervisor also employed with the insurance company. There is no real accountability in the process or repercussions for the insurer if a claim is denied again after an appeal. The insurance company may also have very narrow guidelines that they follow when determining entitlement to benefits under the insurance policy.
Another option available to contest a denial or termination of your disability benefits is to commence litigation. This would be starting a lawsuit against the insurance company for denying or terminating your benefits. When you start a lawsuit, you are removing the decision-making power from the insurance company’s internal claims department and placing the decision making before the court.
Although it may feel overwhelming and intimidating to start litigation and take on an insurance company, having an experienced lawyer by your side can facilitate a successful outcome. It is important to ensure that the lawyer that you do hire has extensive experience dealing with insurance companies in these types of claims. There are many nuances associated with litigating disability claims which are important for your lawyer to know in order to maximize your chances of success and increase the likelihood of a resolution of your claim in advance of trial.
In most cases you DO NOT have to appeal before you commence a lawsuit. Many insurance companies will tell you that you have to appeal but that is simply not true. There may be some situations in which you have to appeal before commencing litigation but most of the time you can start a lawsuit as soon as you have received communication indicating that your benefits have been denied or terminated.
In Ontario and other provinces, there is legislation that sets out a specific timeline within which a lawsuit should be commenced that is applicable to most cases. Some policy documents may also contain timelines that may be different from the legislative timelines. If you do not pursue your lawsuit within the applicable timeline, you may forever be prevented from starting a lawsuit against the insurance company.
It is important to understand that the appeals process does not stop the limitation period from running and if you miss the litigation timeline because the insurance company has you tied up in the appeals process, you may lose the ability to pursue your claim through the court system if it continues to be denied.
In some situations, if you are a unionized employee, it is possible that you may not have the ability to litigate the denial or termination of your disability benefits claim. Your collective bargaining agreement may prevent you from being able to pursue a claim in the court system and instead, you may have to file a grievance through your Union and proceed to an Arbitration process where entitlement will be determined by a Labour Arbitrator.
We do offer consultation services for unionized claimants who cannot litigate and are seeking guidance on their claims.
The following is a list of some of the many insurers that we have litigated against for disability benefits, critical illness benefits, life insurance, accidental death, and dismemberment benefits and so on:
Assumption Mutual Life Insurance Company
AXA
BMO Life
Beneva Inc. (On January 1, 2023 La Capitale and SSQ Life Insurance Company Inc. joined together to become Beneva Inc.)
Canada Life Assurance Company (On Jan. 1, 2020 The Great-West Life Assurance Company, London Life Insurance Company, The Canada Life Assurance Company and two holding companies amalgamated into The Canada Life Assurance Company)
Cigna/LINA (Life Insurance Company of North America)
Co-operators Life Insurance Company
Desjardins Financial Security Life Assurance company
Equitable Life Insurance Company of Canada
Fenchurch General Insurance Company
Forresters Financial
Humania Assurance Inc.
IA Financial Group/Industrial Alliance Insurance and Financial Services Inc.
Ivari (previously Transamerica)
Medavie Blue Cross/Blue Cross Life Insurance Company
National Life Assurance Company of Canada
OTIP
RBC Life Insurance Company (which assumed Paul Revere and Unum Provident)
Scotia Life
Sisip Financial
Sun Life Assurance Company of Canada
Teacher’s Life
The Manufacturers Life Insurance Company (“Manulife” which assumed the former Standard Life Assurance Company of Canada in 2015)
The Empire Life Insurance Company
The Edge Benefits Inc.
TD Life
Penncorp Life Insurance Company
Prudential Financial
Wawanesa Life Insurance Company
There are important distinctions between a group benefits plan and individual insurance coverage. Below is a chart which sets out some of those differences:
Group Insurance | Individual Insurance | |
Cost | The cost of group insurance might be lower for an employee, Association or Union member particularly if the employer, Union or Association is contributing towards the premiums or paying the premiums.
Even if an employee is paying premiums for group long term disability coverage (perhaps they are being deducted from the employee’s pay cheque), the cost of premiums may still be lower than individual coverage but this could also depend on what individual coverage is purchased. | The cost of individual coverage is usually higher than group coverage.
This is often because the benefits offered in individual or private policies are more extensive. |
Application for Insurance | The application process is simple. It usually involves the employer, Union or Association adding the new employee, Union or Association member to a list of covered individuals.
The employee, Union or Association member may have to complete enrollment forms in order to become covered under the insurance policy or plan. | The application process is more complicated.
Individual disability insurance policies are usually medically underwritten.
Medical underwriting is the process whereby an insurance company assesses the risk of insuring the individual by reviewing that individual’s medical information, health status and health history.
The insurance company’s objective is to determine whether it makes economic sense to insure the individual and if so, what premium to charge based on various individual risk factors. When applying for individual insurance coverage, individuals will be asked to complete a medical questionnaire and depending on how they answer those questions and depending on the amount of coverage being applied for, they may be required to undergo a paramedical examination.
A paramedical examination usually takes the form of answering an even more detailed questionnaire and also submitting to basic medical testing administered by a medically trained individual, such as a nurse. The paramedical examination usually includes, measuring height, weight, blood pressure and can include blood tests and urine samples.
The insurer may also request medical information or request that forms be completed by the insured’s treating physician, usually a General Practitioner. |
Flexibility of Coverage | Given that the policy or plan is a contract negotiated by the employer, Union or Association, there is very little flexibility. Standard clauses are often in place and there is no room for customization. | An individual or private policy is a contract negotiated between the individual insured and the insurance company. This allows for more flexibility and customization.
Usually this customization takes the form of optional “riders” which are essentially benefits that can be purchased to provide various coverages beyond what may be contained in the standard individual disability insurance policy and which may modify the coverage in the standard policy.
There are many different types of optional riders for individual disability policies. Some examples include:
|
Taxability | If an employer pays premiums, the disability benefits received if a claim is approved would be taxable. If the premiums are paid by the employee, benefits are non-taxable. | Since premiums are paid by the individual insured, benefits are non-taxable. |
Definitions of Disability | Usually the test consists of two definitions – “Own Occupation” and “Any Occupation”. The first test usually lasts for the first 24 months from the date last worked (although it could be 12 months or 36 months) and the insured has to show that he/she is unable to work in his/her own occupation.
After that the definition of disability changes to whether the insured is capable of working in any occupation based on his education, training and experience. There are often slight variations in the wording of the disability tests depending on the plan/policy. | As indicated above, the definitions of disability can be customized with the use of optional riders. |
Portability | Coverage under a group plan ends when employment ends or membership in the Union or Association ends. (This is if the person is not on an existing claim). In other words you cannot generally take your plan or policy with you when you leave your employer. | The individual is the policyholder and it therefore remains with the individual, no matter where they are employed or even if they are self-employed. |
Denial of Claims |
Although claims can be denied for many reasons, in a group policy, a claim could be denied on the basis of a pre-existing condition exclusion clause.
The pre-existing condition exclusion will usually apply if you make a claim for disability benefits within the first year after your coverage took effect (this time period could vary, but it is typically it is the one year period after the effective date of coverage).
If the insurance company determines that you saw a doctor or had any treatment related to your disabling condition prior to when your insurance took effect, it can deny your claim based on the pre-existing condition exclusion.
This is a very technical area and much turns on the interpretation of the clause in the policy. | Although claims can be denied for many reasons, individual disability claims can be denied on the basis of misrepresentation. Misrepresentation is when the insurance company determines that the individual failed to disclose their medical information at the time they applied for the coverage and had full disclosure been made, the insurance would not have been offered to the individual. It is critical that individuals provide full and complete medical information at the time of insurance is applied for to ensure that the policy is not later voided, and benefits denied based on the individual’s misrepresentation or non-disclosure. Once a claim for disability benefits has been submitted by an individual, the insurance company will usually investigate the claim by requesting medical records that precede the date of disability. The insurer will then analyze those medical records to determine whether the insured fully disclosed their health history at the time they applied for the insurance coverage and if not, a claim will be denied on the basis of non-disclosure and misrepresentation. The insurance company’s ability to deny a claim based on material misrepresentation and to render a contract void ab initio takes on a different complexion depending on when the claim is submitted to the insurer. After a policy of insurance is issued, there is a two year contestability period which starts to run from the effective date of insurance. This is set out in the Insurance Act. If a claim is made within those two years, the insurance company can deny the claim and void the policy based on a material misrepresentation even if the misrepresentation was innocent or negligent. If the claim is made after the two year contestability period, the insurer must establish that the material misrepresentation was fraudulent. To constitute fraud, a material misrepresentation must have been intentional, made deliberately without belief in its truth or, made with a reckless disregard for the truth. |