It is vitally important for many of us to have a safety net in case of a catastrophic event. Long-term disability benefits provide that for people who have been injured or become incapacitated and are no longer able to work.
Long-term disability is insurance provided by employers or which can be purchased privately. Generally, LTD benefits last until age 65, though some policies will terminate after 5 or 7 years or longer, or whatever the maximum duration provision within your own policy states. If approved for benefits, you can expect monthly payments constituting 60-80% of your net or gross monthly compensation depending on what the policy dictates.
But like any other insurance policy, there are standards or rules to follow and exclusionary conditions that can bar a policy holder from obtaining the benefits to which he or she would otherwise be entitled. However, merely because your disability was denied by the insurer does not mean that you are without a remedy. Call a Toronto long-term disability lawyer from Affinity Law if your claim has been denied.
What is Total Disability?
Working or Own Occupational Disability
Total disability is defined within the terms of your policy. It generally means that you are unable to reasonably and properly perform your job or those duties required within your “own occupation” without further harming or injuring yourself. It does not mean that you must be totally helpless to perform other employment such as being paralyzed or in a coma.
Most policies have a time limit on total disability claims of 2-years, after which you will be asked to train for another occupation or to consider other employment for which you may already have the training or education. This can include menial work such as parking lot attendant, data entry work, or grocery store cashier. Typically, your insurer will schedule you for a physical examination before the 2-year period to see if they can terminate your benefits based on your own occupational job requirements. Otherwise, the insurer may be required to continue benefits under any occupational job requirements.
To qualify as totally disabled under your own occupation, you will be asked to provide certain information about your job duties:
- What are the responsibilities of your job?
- What is your particular disability—physical, mental, or emotional?
- Are there any disabling conditions?
- What conditions cause the disabling condition?
For a working disability, you must remain under the regular care of a physician. However, you are considered to be under Assumed Total Disability for these severe conditions:
- Permanent and total loss of vision in both eyes
- Permanent and total loss of hearing in both ears
- Permanent loss of speech
- Loss of use of both hands, both feet, or a hand and a foot
Otherwise, your provider will have to provide a clear and unambiguous qualifying condition and detail your functional limitations that prevent you from reasonably and properly performing your job.
There may be situations where you became totally disabled while not engaged in a gainful occupation when you became ill or injured. You may be eligible for LTD benefits for a “non-occupational disability” provided:
- You are unable to perform the regular substantial activities you had been engaged in and,
- You are not engaged in any gainful employment, and,
- You are under the regular care of a physician
If at some point you were scheduled to return to gainful employment but your illness or injury prevents you from properly and reasonably engaging in your work duties, then your occupational disability will apply from the date you were scheduled to begin work.
Not all policies are alike, so there may be certain illnesses or work-related injuries that are not covered. Further, your policy may require you to first apply for Canada Pension Plan Disability Benefits (CPP). If you are awarded benefits, then your policy may offset or deduct the amount it paid you from any LTD benefits you are paid including those from CPP. The offset applies to any other disability plan or income source from which you are receiving funds.
If you were injured or found yourself unable to work, promptly contact your human resources department if your policy was part of your employee benefits package, or your insurer directly if you have a private plan since most plans require notice within a certain time after the disability began. There is also a waiting period involved during which time the insurer will investigate your claim.
The qualification time or elimination time can be from 3-6 months or even up to one year during which you must be unable to work at your own occupation. You can still collect short-term disability benefits from your employer or sick days, and qualify for benefits from the Canada Pension Plan Disability Benefits program.
Document Your Disability
Documenting your disability is vitally important to obtaining benefits. Without adequate documentation, your insurer could deny benefits. Records include:
- All doctor visits
- Description of your pain and symptoms
- Clearly detailed work or functional limitations
- Clearly defined job responsibilities or physical requirements
- Work history
- Clinical notes and records of your family physician
- Clinical notes and records of other specialists, therapists, counselors
- Clear medical diagnosis that is not excluded under your policy
- Canada Pension Plan Disability records
- Receipts for any related out-of-pocket expenses
- Contact information of insurance personnel
You will also want to retain a copy of your LTD Disability Application, medical/disability questionnaire and Job Duties Description.
Reasons for Denying Your LTD Claim
It is not uncommon for initial LTD claims to be denied. Insurance companies actively search for ways to deny coverage or benefits so it is imperative to immediately retain an experienced long-term disability lawyer from Affinity Law to handle your appeal.
Denials are generally based on:
- Insufficient medical care or support. You need to be under the regular care of a physician, which means regular visits and treatment. If you suffer from extreme depression or anxiety, a visit to your psychologist or psychiatrist once every 3-months will not be sufficient. If you miss scheduled appointments, this is another argument that your condition is not severe and that you are not totally disabled.
- Insufficient medical documentation. All medical records from all providers that you saw need to be produced, even if a provider did not agree with another doctor’s disability assessment or failed to provide one. If the insurer sees that you omitted some records, you will be denied benefits.
- Lack of a definitive statement or opinion from your physician. Your doctor needs to detail the reasons why you are unable to properly and reasonably perform the duties of your occupation or cannot substantially engage in the regular activities you did before you became disabled.
- Excluded condition. Your doctor may have listed a condition that is excluded under your policy, such as drug addiction or a pre-existing condition. You may also have a condition such as depression that is limited to 2-years of benefits under your policy..
- Surveillance. It is not unusual for insurers to hire detectives to follow and videotape you engaging in certain activities that belie your claim of total disability. This might involve you changing a tire, shoveling snow for 2-hours, playing golf, or carrying heavy objects. It is important that you carefully adhere to whatever restrictions your doctor imposed on you such as lifting no more than 5-pounds. Also, you should assume that your social media presence will be monitored. If you post photos showing you smiling or laughing despite your claim of extreme depression or anxiety, or playing a sport, or boasting about deceiving the insurance company, do not be shocked if you receive a letter of denial or a criminal investigation.
- Failure to timely commence a claim. Once you receive a denial letter, you have 2-years to file a lawsuit. You can file an internal appeal with your insurer but the time for filing in court continues to run during this time. An internal appeal can also give the insurer additional reasons for denying your claim. However, the insurer’s denial must be “clear and undeniable” or your lawyer can argue that you have a longer time to file your lawsuit.
- IME physician’s opinion. Your insurer is entitled to have you examined by a doctor of its own choosing. In many cases, the physician will opine that your symptoms or clinical exam results are not consistent with your claimed disability.
Working another job. Some claimants work under the table or collect cash while working another job. If caught, they face severe civil and criminal consequences. Be aware that during the qualification of elimination time, you can collect CPP Disability Benefits or compensation from any other plan, though the LTD insurer will claim an offset if it does eventually cover you.
To Appeal or Not
If your LTD claim is denied, you have the opportunity to file an internal appeal, which means within a department of the insurer to reconsider the denial. Some plans require this before you can file a court claim before the 2-year statute of limitations bars your claim but not all. If not, you should only consider filing an internal appeal if:
- Your doctor needs to clarify an opinion
- You failed to provide requested information
- Your doctor provided incomplete information
- It is unclear what your job duties are or how your physical limitations prevent you from performing your job
- There is no surveillance of you
- You did not appear at your IME
Otherwise, you should retain a lawyer to represent you in an external appeal, especially if your benefits were were denied based upon:
- An IME physician’s opinion
- Video surveillance of you showing you performing tasks that you should be unable to do, which is taken out of context or subject to a different interpretation
- You have a pre-existing condition that was excluded under the policy
- Your application was not timely filed
- There is a 2-year change of definition for your occupation wherein it changed from your own occupation to whatever occupation you can do
- Your doctor blames your disability on a toxic work environment
Long-term disability insurance can be a life saver for many claimants who are no longer able to work, but the process in obtaining benefits can be a minefield where a misstep could seriously jeopardize your right to benefits. Having your claim competently handled so that you receive all of the disability benefits to which you are entitled is essential for not only your own well-being but for your family as well. Let Affinity Law handle your disability claim to ensure you receive quality representation. Connect with a highly skilled and resourceful Toronto disability lawyer from Affinity Law if you are planning on filing a long-term disability claim.
Call us today for a free consultation at (905) 738-2463.