Insurance is a form of risk management that you should – or in some cases must – obtain, depending on the circumstances.
In some cases, insurance is compulsory under the law. In Ontario, for example, it is a provincial offence under the Highway Traffic Act to drive without automobile insurance. In cases where insurance is not legally mandated, it still may be a requirement.
For example, if you are mortgaging a home, a financial institution will demand proof that you have homeowner's insurance before releasing funds. The reason? The home will serve as security for the repayment of the mortgage loan, and the bank or trust company has an important interest in ensuring that its security (i.e. your home) is protected through insurance in the event of fire, vandalism or other loss.
Insurance is also available to protect employees who are unable to work due to illness or injury. Though not legally required to do so, many employers have long-term disability (LTD) insurance plans to protect, at least to an extent, the income stream of an employee who becomes ill or is injured.
Some organizations pay the entire premium for the employee coverage; others expect employees to share the cost through regular payroll deductions. It is also possible to purchase LTD coverage privately if your employer does not offer it.
Insurance is something you hope to never need to access. When you do have a claim, however, it can be frustrating if the benefits that have been faithfully paid for are denied. An LTD claim denial or termination of benefits is not uncommon even if you are suffering from a legitimate injury or illness. However, that doesn't mean you should assume that the denial is the final word and therefore give up hope.
Recovering from an injury or an illness can be difficult in itself; dealing with an insurance company can just add another layer of stress. Many people choose to challenge the denial of a claim themselves, but the law can be complex. In cases of denial, your best course is to consult a lawyer who has experience dealing with the insurance industry.
The long-term disability team at Gluckstein Lawyers will consider the merits of a denial of your benefits. If a claim is warranted, our team will consider whatever remedies the law allows and decide upon the best course of action for you.
How Does Disability Insurance Work?
If you have suffered an injury or illness that leaves you unable to work, you may be wondering what comes next. How do I get a diagnosis to prove my claim? What will treatment entail? How will I pay my bills until I am able to work again?
If your workplace policy includes short-term disability (STD), you will likely be eligible for immediate financial assistance. It is usually assumed with a short-term disability that you will be back on the job within a few months. With a long-term injury or illness, you could be off work for years, or even indefinitely. For those who cannot return to their job, LTD insurance may provide coverage until retirement age.
The waiting period for STD can be less than two weeks depending on your policy. With an LTD claim, you may have to deal with what is known as a qualifying or elimination period, which is unique to every policy and can range from several months up to a year.
Short-term disability coverage, if available from your employer, may act as a bridge while waiting for LTD benefits to be approved. You may be able to receive Employment Insurance sickness benefits if you do not have short-term disability coverage.
Understanding How Disability Is Defined.
Defining disability can be subjective and your insurer may not agree that your illness or injury fits its approved definitions or classifications. Generally, if you are substantially unable to perform the essential functions of your job, and if you can provide medical evidence from qualified health practitioners that the insurer determines to be sufficient and credible, you may be deemed to be disabled and therefore qualify for benefits.
You do not have to be completely unable to do anything either physically or mentally to qualify for LTD benefits. You must only prove that you cannot perform the core or essential functions of your job.
Whether you meet the eligibility test will depend largely on the type of work you do (e.g. physical, sedentary, cognitively-demanding, etc.), the nature of the illness or disability, and the strength of the medical support accompanying your claim.
The importance of the latter cannot be overstated. It is not sufficient that your physician simply states that you are disabled and cannot work.
Rather, the physician's statement, if it is to be effective, must reference the physician's understanding of the actual physical and/or mental and cognitive requirements or demands of your work, and how the injury or illness prevents you from carrying out the essential functions of your job. While statements of disability from general practitioners are important and useful, stronger or more focused support may be found in statements from qualified specialists.
It should be noted that there are typically limits when it comes to defining disability. In most policies, during the first two years of your claim, the disability test is commonly based on your inability to perform the essential functions of your particular job.
However, after two years the insurer will only consider you to be totally disabled if you are unable to perform any job. That means you could be expected to return to work, even for a different employer, and in a different capacity, if you are reasonably capable of doing a job other than your own, based on your experience, education or ability to be retrained (typically at the expense of the insurer).
Importantly, if the insurer's intention is to see you retrained to do another job, the work that the insurance company claims you are capable of doing must be commensurate with your relative position in the workforce, your age and other real-world factors. For instance, if you were middle management when you went on disability, you wouldn't be expected to park cars or wait tables.
The courts have spoken clearly on that point. Moreover, if the proposed retraining runs counter to your clinicians' medical advice, you may be on solid legal ground to refuse to participate in such undertaking.
Many Reasons a Claim Can Be Denied or Terminated.
Each long-term disability case is judged on its own merits, but many of the reasons for a claim denial are universal.
If you fail to file your claim or your appeal on time, or fail to communicate with the insurer promptly, you could be denied benefits. An incomplete application or missing documents can also delay or jeopardize your claim.
Claims with insufficient medical evidence or a refusal to attend an independent medical assessment can be rejected. You must also be willing to submit to reasonable treatment that is recommended by your physicians, and/or participate in rehabilitation if appropriate.
The insurance company could also question your credibility and put you under surveillance to collect evidence to disprove your claim, especially when the insurer has suspicions regarding your level of activity or impairment. They may also rely upon contractual exclusions to deny your claim, such as an exclusion for pre-existing conditions or for injuries sustained while in the course of excluded activities or in the commission of criminal acts, to deny your benefit claim.
The insurance industry is structured to make money, and insurers are hardly philanthropic organizations. They have bottom lines and shareholders to enrich.
And while an insurance company's product is designed to protect policyholders against unexpected financial loss, that doesn't mean they are in business to give away money. They will often vigorously investigate claims and reject those they believe lack merit. Still, that doesn't mean they are always justified in denying a claim.
Why You Should Seek Legal Advice.
The LTD application process is normally undertaken well before lawyers become involved in claims. Applying for LTD can be confusing and difficult, but it must be approached honestly and effectively from the start. Your trusted physician(s) should be informed of your intention to apply for LTD. They should be politely asked to support your application, and should be made fully aware of the core tasks of your employment – the ones that you feel you cannot carry out due to disability. Physicians will generally support a patient's application if they truly believe that their patient is occupationally- disabled.
At Gluckstein Lawyers, we understand disability insurance law and how to litigate LTD insurance claims. If you have been denied coverage or your benefits have been terminated, you may be overwhelmed by the dispute process. However, our team of long term disability lawyers have dealt with the insurance industry for decades and knows how to build a solid case on your behalf if we feel that a denial is wrong.
When you are dealing with a disability your focus should be on your recovery. However, fighting the insurance company without help is stressful and the challenge can overwhelm even the strongest person. Allowing a lawyer to represent you means you will no longer have to deal with the insurance provider directly. That alone will give you peace of mind.
Once our team takes your case, the insurer can no longer contact you. It must deal with us. This means you no longer have to worry about saying something potentially damaging to your claim. The insurance company will have no choice but to disclose everything relevant about your case, thereby placing us in a better position to either negotiate a settlement or, if necessary, litigate the claim through trial.
With decades of legal experience, we have a clear understanding of your legal entitlements. We know what experts to hire, how to draft appropriate pleadings that protect your interests, and how to prevent insurance companies from overreaching. Without legal representation, the insurer may try to pressure you, or you may feel pressured on your own, into taking a substandard settlement offer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
