Long-Term Disability Claims for Ontario Employees
Should I stop working if I am not able to perform the duties of my job due to illness or injury?
You should stop working if your doctor recommends that you stop. Similarly, if you do not feel you are able to work or to complete your job duties, you should stop working and see your doctor. Sometimes clients push themselves to work despite their functional restrictions and limitations. Doing so may strain the relationship with the employer and/or may aggravate your medical conditions.
When should I apply for disability benefits?
You should apply for disability benefits as soon as it becomes apparent you are not able to work or complete the duties of your job due to an illness or injury. Some insurance policies stipulate a deadline within which they require you to submit your claims forms. If you have missed the policy deadline for submitting a claim, you should still submit your claims forms, as soon as possible. In some cases, the insurer may still consider your claim, despite its lateness and it is important that you seek legal advice on this issue.
How do I apply for disability benefits?
If you have coverage under a group disability plan through your employer or an association, you should start by contacting your employer/association to obtain the disability claims forms. If you have an individual or private disability insurance policy, you should contact the insurance company directly to obtain the forms. You may also be able to download the forms from the insurance company website. There are usually two forms that will be required: the Claimant’s Statement (completed by you) and the Attending Physician’s Statement (completed by your doctor). With group insurance, the insurer will also ask your employer to complete a form (Employer’s Statement). With individual/private insurance, you may also be asked to provide details about your business and financial losses due to your disability.
What can I do to increase my chances of being approved for disability benefits?
You should apply promptly and include as much information about your functional limitations and restrictions as possible. This includes providing detailed answers to questions on the Claimant’s Statement and ensuring your doctor provides fulsome responses, as well. You may wish to meet with your doctor prior to him/her completing the Physician’s Statement to ensure he/she includes all relevant information about your disability and to remind him/her to attach all supporting documentation such as test results, specialist consultations reports and any other records that support your claim.
How much is my disability benefit?
Your disability benefit is calculated based on the insurance policy your employer (group) or you (individual/private) purchased. Disability insurance is a form of income replacement and generally does not provide you with 100% of your lost earnings. Generally, your benefit will be based on a percentage of your pre-disability earnings. Many group policies have a benefit amount ranging from 60% to 75% and most often it is 66.7%. You should refer to your benefit booklet or policy or contact your employer to find out what your benefit amount or percentage will be. You may also want to determine whether the calculation is based on your net or gross pre-disability income and whether the benefit is taxable (your employer contributed to your premiums) or non-taxable (you paid the full premium for the benefit).
Do I have to sign the insurance company’s authorizations?
This is entirely up to you. You should be aware that when you complete your portion of the application (Claimant’s Statement) and sign the form, you will be providing the insurance company with a broad authorization to collect and share your personal information. You should read the small print to ensure you are aware of what you are agreeing to. The insurer will use your authorization to gather information from your treating health care providers in assessing your eligibility for disability benefits.
Will my employer terminate my employment if I go off work due to disability?
Your employer is governed by various employment laws in Ontario (and Canada) and these laws will determine how your employer responds to your absence. In most instances, employers do not terminate a person’s employment when he/she is unable to work due to disability (whether disability claim has been approved or not). However, each case is different. For example, if a person has been off work for a significant period and is receiving disability benefits and it is apparent that he/she will not be able to return for the foreseeable future, the employer may determine the employment contract has been frustrated and sever the relationship. Alternatively, if a person has not been approved for disability benefits and has not returned to work and has not provided any information about when or under what conditions he/she may return, the employer may conclude the person has abandoned his/her job. Generally, employers have a duty to accommodate persons with disabilities and will need to do so or justify why they are unable to accommodate the person, before terminating the relationship. If your employer has terminated your employment, you should contact a lawyer.
Why did the insurance company deny my disability benefit claim?
There are many reasons why your disability claim has been denied. The denial letter will provide information regarding the basis upon which it was denied. Often the insurance company will conclude that there is insufficient medical information to support or confirm that you are not able to work and that you are disabled. Sometimes the insurer may take issue with your treatment; finding that you are not receiving appropriate treatment or that your treatment is not indicative of a severe condition. There may also be comments in your medical records that suggest that your condition is improving or that that you have the functional ability to complete the duties of your occupation. If you do not participate in the insurance company’s rehabilitation plan or if you do not do a gradual return to work proposed by the insurer, your claim could also be terminated. There may be other reasons, such as surveillance, which may/may not be cited in the letter, which resulted in the denial. It is best to contact a lawyer immediately upon receiving the denial letter.
What should I do if my disability claim has been denied?
If your disability claim has been denied you should be aware that under Ontario law (known as the Limitations Act) you have two years to commence a lawsuit (subject to any other time frame in the insurance policy). It is therefore important that you consult with a lawyer immediately to determine whether to appeal the denial or to commence a lawsuit. An experienced disability lawyer will be able to tell you which option is best in your case. In either case, you should continue with your treatment and continue to see your doctors. If your employer contacts you, you should advise the employer that you are still disabled and you will be appealing or contacting a lawyer to dispute the denial of your claim. You should not return to work prematurely or without medical clearance. Doing so may aggravate your condition and strain the employment relationship.
Should I appeal the denial or termination of my disability benefits?
If you have had a significant change or worsening in your condition since the claim was denied or if you have new medical records to support your claim, it may be worth appealing the denial. However, as in most cases, claimants have provided all records and remain disabled. In those circumstances, generally, the only option is to commence a lawsuit.
My disability claim has been denied, how do I support myself financially?
You should attend a Service Ontario office or go online (link) to apply for other income benefits to which you might be entitled. You should contact a lawyer immediately, to ensure litigation commences promptly and your claim is resolved as soon as possible. A disability lawyer should also be able to advise you about other potential claims you may have such as personal injury, motor vehicle, employment, human rights, etc.
When should I call a lawyer?
You should call a lawyer when your disability is denied and you are still not medically able to return to work. If you sense that your claim will be denied based on your communications with the insurer, you may also wish to make an initial call with a lawyer, in anticipation of the denial. The sooner a lawyer is involved, the sooner your dispute with the insurer will likely be resolved in litigation.
How does the definition of disability change after two years and why might my claim be denied at that time?
Under most group disability policies, the definition of “total disability” changes after two years. For the first two years of disability, you must be disabled from performing the essential duties of your own occupation (this is broader than your own job). After that, you must be disabled from performing the duties of any occupation for which you are suited by way of your education, training and work experience. The exact wording and requirements vary between policies, as such you should refer to your policy to determine what definition(s) of disability apply to you. Often claims are denied at the two-year mark when it becomes more difficult for people to prove that they are totally disabled from any occupation. If your claim is denied at this point, you should contact a disability lawyer immediately.
Do I have to apply for CPP Disability Benefits?
At some point after being approved for disability benefits (usually around the two-year mark), the insurer will require you to apply for CPP Disability (CPP-D) benefits. CPP-D benefits are an “offset” under most disability policies. This means that any amount paid to you by CPP-D will reduce your disability insurance benefit. The definition of disability under CPP-D is more difficult to satisfy than those under your disability insurance policy. If you do satisfy the definition and are approved, it may be more difficult for the insurer to terminate your benefits. If you do not apply for CPP-D, some insurance policies allow the insurer to reduce your disability benefit, as if you had applied and been approved. It is therefore best to apply for CPP-D.
Can my insurance company deny my claim due to a pre-existing condition?
Most disability policies have a pre-existing condition exclusion. While the wording of the exclusion varies between policies, generally, a disability claim will be denied if you become disabled within 12 months of becoming insured under the policy from a condition or related condition for which you sought treatment or consulted a doctor within the three month period prior to your coverage taking effect. This is an important exclusion to remember if you feel you might need to stop working due to disability and you are a new employee, not having disability coverage in place for a full year.
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