For those suffering from physical disability and mental illness, long-term disability (“LTD”) benefits can provide some measure of financial security. These benefits may even be available for those who have been laid off, terminated or furloughed, but time is of the essence.
Eligibility – Determining if you have LTD Coverage?
Under group health benefit plans, an employee may have long-term disability benefit coverage. Even if the employee has been laid off or terminated from their job, they may still be covered. In some cases, an employer is required to extend the employee’s benefits coverage for a certain amount of time, so if the employee had benefits while they were working, their LTD benefits could continue to be available after lay off or termination, at least for some period of time.
If a policy is in place, LTD benefits are not paid immediately. The insured person must pass a waiting period, which in general ranges from 120 days and up to 6 months from the onset of disability. Each policy is different. Some policies will also require the insured person to apply for benefits within a certain period of time following the end of the waiting period. But, it is recommended to submit an application well before that deadline.
Applying for LTD Benefits
The application package is typically made up of 3 parts:
- Member Statement – insured person completes this part
- Attending Physician’s Statement – insured person’s doctor completes this part
- Employer Statement – insured person’s employer completes this part
To qualify for LTD benefits, the insured person will need a supportive opinion from a treating doctor. The Attending Physician’s Statement does not necessarily need to provide a diagnosis. Instead, the emphasis can be on the impact of the medical condition on the insured person’s ability to work. An opinion from a specialist in the field of medicine relating to the medical condition is particularly effective.
How is Total Disability Defined?
Disability benefits should be paid if the insured person meets the definition of disability in the policy.
For group disability benefits, there is generally coverage for 24 months if the insured person is unable to work in their “own occupation” – i.e., the job that they were doing at the time that they became disabled.
After 24 months, there is often a change of the definition of “total disability” from the insured person’s own occupation to “any occupation”. Disability benefits will continue to be paid if the insured person is incapable of performing any occupation for which they are reasonably suited by education, training and experience.
How is Disability Defined by the Courts?
First and foremost, if an insurance policy or contract specifically defines “total disability”, greater deference will be given to that definition than to case law. Ultimately, the wording of the policy in question prevails.
In the case of Van Allen v London Life Insurance Co., [1999] OJ No. 3813, the Court found that the test for total disability is substantially subjective, in terms of the insured and their physical and mental health, but some objective medical evidence is also often required to support the disability.
In Eddie v UNUM Life Insurance Co. of America (1999 BCCA 507) and Saunders v RBC Life Insurance Co. (2007 NLTD 104), the Court reasoned that the insured’s own evidence, if consistent with the surrounding circumstances, may suffice to prove a disability.
Ultimately, the Courts have concluded that the definition of total disability cannot be interpreted too restrictively. As in Mutual Life Insurance Co. (New York) v Lessard (1943), 10 I.L.R. 252, it has been held that “if an insured is so incapacitated that all he can do is sell pencils on a street corner, it could hardly be said that he is able to pursue an occupation with a view to gain.”
Sucharov v Paul Revere Life Insurance Company [1983], 2 S.C.R. 541 is a leading case that has been relied on by Ontario Courts as authority for the test of total disability. In this case, an owner-manager was determined to be totally disabled when he was unable to perform “substantially all” of his job duties. The Court found:
“Total disability” does not mean absolute inability to perform any tasks of employment. For instance, an owner-manager is totally disabled from performing his work as such when he is unable to perform substantially all of the duties of that position. When assessing an insured’s inability to perform the duties of their own or an occupation, the duties are to be viewed in their totality, rather than separately.
Your Claim is Denied – Now What?
The long-term disability provider will likely provide a denial by letter, stipulating a time period within which to submit an appeal. At this point, the insured person may already be off work for many months, so there is no reason to delay in hiring a lawyer, especially if your doctor and/or treatment specialists determine that you are not able to work.
It is important to note that for those employees who are unionized, if the long-term disability policy is included in the Collective Agreement, the claim is considered arbitrable and the individual will have to file a grievance through the union if the LTD claim is denied or cut off.
The lawyers at Bogoroch & Associates LLP are experienced and skilled in litigating the wrongful denial of long-term disability benefits. If you have any questions about your eligibility to long-term disability benefits, or the steps to be taken following a denial of benefits, please contact our lawyers for a free consultation.
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