by Danielle Bartlett, Nicholson Gluckstein Lawyers
An individual who is unable to work for an extended period of time due to injury or illness is often eligible to receive income replacement benefits in accordance with the Long-Term Disability (“LTD”) payments that their employee benefits package insures.
While an employee may regard their condition as obviously qualifying them for LTD coverage, they may find that, much to their dismay, their employer’s insurer has either denied payment or, in cases when it was initially approved, has arbitrarily terminated payments.
Denial of LTD coverage can be highly distressing, especially when injured or ill and emotionally vulnerable. In the event of denial or termination of your LTD payments, you should consult with a long-term disability lawyer who knows LTD contracts and the law involved to best represent your interests.
(i) Navigating The Legal Process
In my experience, many people have only the most basic understanding of their employee’s insurance policy. That is hardly surprising. Reading and understanding an LTD contract is often difficult, and, in most cases, employees do not expect that they will become ill or injured. Securing the LTD benefits you are entitled to begins with reviewing that policy to determine how the critical term, “total disability,” is defined. Understanding that term depends, in turn, on what is meant by the “period of disability.”
There are two distinct types of disability periods: the “own occupation” and “any occupation” periods. In most cases, a disabled employee is entitled to payments over a period of 104 weeks if that individual’s physical and/or psychological impairments preclude a return to work at their “own occupation.” However, in those instances in which the employee’s physical and/or psychological condition is such that they are unable to work after that two-year period of coverage is exhausted, the standard for “total disability” is redefined. Eligibility for continued coverage means that the employee must be unable to complete the essential duties of “any occupation” for which they are suited by “education, experience or training.”
(ii) Challenging
The Insurer’s Decision
Unfortunately, defining “total disability” legally is a more complicated and nuanced process than common sense would seem to dictate. The insurer informs you that your LTD benefits have been denied or terminated and often does so with very little or no explanation regarding the decision. Although claimants do have the right to appeal such decisions, my experience suggests that remedy is often ineffective, frustrating, and time-consuming. Fortunately, there is an alternative. An LTD lawyer can commence litigation against the insurer and challenge the denial by gathering evidence to support the disability claim.
(iii) Documenting Your Claim
First and foremost, you should understand that if you are making an LTD claim, “total disability” does not mean that you are incapable of performing any aspects of your job. Thus, while you may be physically able to return to work, you may be experiencing significant psychological difficulties—including anxiety and depression, as well as cognitive challenges—that prevent you from being capable of working. Similarly, though you may feel highly motivated to return to work and feel that you are emotionally and mentally capable of doing so, you may be physically incapacitated and functionally impaired to such an extent that you simply cannot work. You may even have tried to return to work, only to discover that you are incapable of doing so.
As a general rule, anyone making an LTD claim should make best efforts to keep an ongoing record of the impact of their injury or illness on their capacity to function. It is not uncommon for claimants to minimize the impact of their challenges, to attempt to “put on a brave face” to cope with their condition with the aim of returning to work. In doing so, they may avoid being assessed by health care providers or identifying what may become significant health problems. For example, in the case of disrupted sleep, it is prudent to keep a record of the number of hours you are sleeping and, if the problem persists, to discuss it with your family physician. Sleep deprivation is one of the more common symptoms that claimants typically regard as being nothing more than a nuisance initially but can become a significant factor involved in aggravating or prolonging a physical or mental illness
If a claimant has been struggling with significant psychological problems, they may avoid seeking treatment. Unfortunately, the perceived stigma associated with mental health problems often results in claimants denying that they are impaired by conditions such as anxiety, depression, or post-traumatic stress. To demonstrate clearly that you have done everything reasonable to recover your health and return to work, you should consult with the appropriate health care providers to assess your condition. Further, you should adhere to all medication regimens you are prescribed and attend all recommended therapies. Maintaining accurate and complete records of your attempts to mitigate the damages you have sustained due to injury or illness strengthens your LTD claim.
(iv) Experts’ Reports
It is often necessary for LTD claimants to participate in medical and psychological assessments to document the conditions preventing them from working. The reports that the examining professionals produce are important sources of information in countering an insurer’s denial or termination of LTD payments. Similarly, claimants are often asked to participate in vocational assessments: a process that provides an essential expert opinion regarding both the possibility of returning to pre-accident employment or pursuing alternative employment opportunities.
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