Long Term Disability

Do I need A disability lawyer?

Is this you?

Your insurance claim for long-term disability benefits was originally approved by your insurer, paid for some period, and then denied or terminated.

Or is this you?

You have been fighting with your long-term disability insurer for months or even years over its denial of your LTD claim, and you have gotten nowhere but frustrated and sick.

There is hope.

If you are experiencing one or both of these misfortunes, you have the legal right to challenge the insurer’s decision. You normally do not need to first go through the insurer’s internal ‘appeal’ process, even though your disability insurer may provide that option.

A personal injury lawyer who understands disability insurance laws and how to litigate long-term disability insurance claims will know how to assist you with your claim. He or she will know what experts to hire, how to draft appropriate pleadings that protect your interests, how to prevent insurance companies from over-reaching, and how to position your case in a manner designed to get you the best possible outcome.

Long-term disability benefits.

You may have purchased your long-term disability insurance policy privately, or you may have coverage through a package of group benefits made available to you by your employer. Or your long-term disability claim may arise under a mortgage disability policy that your bank required you to purchase when you financed your home or business. Your disability may be the result of Chronic Fatigue Syndrome (CFS), Myalgic Encephalomyelitis (ME), or Fibromyalgia (FM), or it may arise from a Cardiac, Respiratory, Immunologic, Neurologic, Mental Health, or other disabling conditions.

Regardless of the cause of your long-term disability or the type of LTD coverage you have (private, group, or mortgage disability), you may be legally entitled to continue receiving LTD benefits even though your insurer has told you differently.

Act now.

It is most important that you do not refrain from or delay consulting an LTD lawyer regarding your LTD claim because of a fear of legal costs. If your LTD claim has merit and successfully results in a payment of compensation, your legal fees and expenses will only be paid out of the compensation you receive. If compensation cannot be obtained for you, you will not be charged. And, of course, there is never any charge for our consultations, whether or not we take your case.

Get your free consultation with a personal injury lawyer.

A no-obligation free consultation with a  Gluckstein Personal Injury Lawyer is only a phone call away. During the call, our LTD lawyer will discuss your current circumstances with you and, based on the information you provide, will advise whether our firm may be able to assist you in challenging the insurer’s denial. We will also always be direct and upfront with you, and we will therefore tell you if our personal injury law firm is not able to assist you, and we will tell you the reason(s) why.

Our long-term disability lawyers in Toronto, Ottawa, Niagara, and Barrie serve clients across Ontario and are here to work with you. Contact our nearest office to set up your free consultation.

Long-term disability insurance.

What is a long-term disability insurance policy?

Long-term disability policies exist to protect individuals who are unable to work due to a disability or illness by providing an income replacement benefit. If you cannot work due to illness, accident, or injury for an extended period, you may qualify for long-term disability benefits through your insurer.

Every long-term disability insurance policy is different. To qualify for long-term disability benefits, you will have to meet the eligibility criteria outlined in your insurance policy. This will include meeting the definition of “disability” that is described in your insurance policy.

In Canada, long-term disability insurance is a particular type of insurance that replaces part of your lost wages if you cannot work due to injury or illness. Often, long-term disability is provided as a benefit by your employer. Depending on the group benefits program, you may or may not have to pay all or part of the premiums yourself. Still, you can purchase stand-alone long-term disability coverage yourself directly from insurance companies that offer the product.

What kinds of disabilities do long-term disability insurance policies cover?

When people experience physical disabilities, it is generally easier to “see” the disability. Wearing a cast, using a walking aid such as a cane or walker, or having visible scarring are some examples of objective signs of disability. When a disability is not evident, such as mental health and chronic pain, it is harder to prove that an individual is suffering or incapable of working.

Is long-term disability insurance the same as Canada pension plan disability?

No, long-term disability insurance is not the same thing as the Canada Pension Plan disability insurance. Private insurance companies typically offer long-term disability insurance under a contract with your employer to pay you a fixed percentage of your wage while you are disabled. The federal government offers the Canada Pension Plan (CPP) disability insurance program. It pays a certain amount considering the period over which you have paid into the CPP program. To be eligible for CPP benefits, you must have a mental or physical disability that regularly prevents you from doing any type of substantially gainful work, have a disability that is prolonged or of indefinite duration, or is likely to result in death.

Is long-term disability insurance the same as employment insurance sick benefits?

No, it is not. Employment insurance is a short-term insurance program offered to claimants who have paid into the employment insurance program and are prevented from working at their occupation due to injury or medical condition. The waiting period under private or group long-term disability insurance (that is, the period you must wait before you are eligible for benefits) is often several months and varies based on the policy. Moreover, long-term disability plans may cover you for many years and often provide coverage through age 65. Employment Insurance has a two-week waiting period. And then you were entitled to receive benefits for only 15 weeks. However, the federal government has recently signaled its intention to increase unemployment insurance sick benefits coverage from 15 to 26 weeks.

What is the difference between short-term disability insurance and long-term disability insurance?

Short-term disability benefits are available to you soon after you have become disabled. In general, the waiting period for applying for short-term disability benefits is between 0 and 2 weeks. An insurance company can provide short-term disability benefits, but more often, such benefits are paid by your employer directly. Long-term disability benefits, on the other hand, usually only commence following a three to six-month waiting period and may be payable for months or even years, depending on the nature of your disability.

Does my long-term disability benefit also cover things like medications and dental treatment?

Most insurance companies do not pay such additional benefits under a long-term disability plan. However, your employer’s group benefits plan will often cover drugs and dental. After you have been away from work for an extended time, employers may either discontinue your participation in the group benefits plan or require you to pay the premiums for your coverage. If your employment is terminated, your eligibility to participate in the group benefits plan will typically end.

What is the difference between the “own occupation” and “any occupation” test when determining whether you qualify for disability benefits?

Every long-term disability insurance policy is different. However, most policies require that you satisfy the “own occupation” test to qualify for the first stage of benefits, usually lasting one to two years. Generally speaking, you meet the own occupation test if you are unable to perform substantially all of the important elements of your regular occupation. After one or two years, again depending on the policy, the test to qualify for benefits usually changes to what insurance companies refer to as the “any occupation” test. Under that test, you may be entitled to continue to receive benefits if you can establish, on the strength of the medical evidence that you submit to the insurer, and inability not only to perform your own occupation but any other occupation for which you are reasonably suited by education, training, or experience.

It is not unusual for claimants to have their benefits terminated once the policy transitions from the “own occupation” to the “any occupation” standard. It is essential to consult with a lawyer as soon as you receive a letter from an insurance company indicating that it intends to terminate your benefits due to the change in entitlement definition from own to any occupation.

Can I apply for disability insurance by myself, or do I need a lawyer?

You can generally apply for disability insurance benefits by yourself. If you are worried that there might be some reason that the insurance company will dispute or deny your claim, such as a pre-existing medical condition, or disputed diagnosis, it may be beneficial to consult with a lawyer early on to discuss how to best present your claim.

How much money do long-term disability insurance policies pay?

Long-term disability insurance typically pays a percentage of your wage, subject to a specified maximum. A common percentage is somewhere between 60% and 70% of your regular pre-disability salary. As there are many different kinds of long-term disability insurance policies, it is essential to understand the terms of your specific coverage. For instance, some policies will include coverage for overtime you worked before you became disabled, while others will only pay you a percentage of your regular wage.

Are my long-term disability benefits taxable?

Whether or not your long-term disability benefits are taxable depends on who pays the premiums. In cases where an employee pays the premium by having it deducted from his or her paycheque, any future disability benefit that is received should not be taxable. However, if an employer pays the premium for your long-term disability benefits, the government and the courts will generally consider that benefit a taxable one.

How long is the insurance company obligated to continue to pay me long-term disability benefits?

There are generally two broad restrictions on how long an insurance company is obligated to continue to pay you long-term disability benefits. The first is based upon entitlement. To receive benefits, you must continue to meet the disability tests under the applicable own occupation or any occupation provisions. The second restriction is related to time or age. Every contract for long-term disability insurance is different. Some contracts are time-limited; that is, they will only provide benefits for two years, or five years, or ten years, regardless of your age. Almost all contracts are also age-limited. Nearly every agreement in Canada provides for the entitlement to continue to receive long-term disability benefits as long as you qualify for benefits or until you reach the age of 65, whichever comes first.

Do I stop being entitled to long-term disability benefits if my employer terminates my employment?

No. Even if your employer terminates your employment, your entitlement to long-term disability benefits will continue as long as you remain eligible since your disability arose while you were covered as an employee. In contrast, your right to participate in group benefit plans may end if your employer terminates you. However, this is separate from your right to continue receiving long-term disability benefits.

Disability claims.

What if my long-term disability benefits are denied?

When you have filed your long-term disability claim, your insurance company may give you the green light to receive your LTD benefits. However, it is important to know that LTD insurance benefits may terminate because you now fall under a change in the definition of disability after a certain period of time has passed.

A two-year period is the general cut-off mark, signaling a change from being unable to work “in his or her own occupation” to being unable to work in “any occupation”. The moment your LTD benefits stop, you need to call a lawyer. It is not up to your LTD insurance company to ultimately decide when your LTD benefits end.

What if my long-term disability benefits are rejected initially?

On the other hand, LTD insurance companies can immediately reject your long-term disability claim in certain circumstances. The denial may be based upon injuries or illnesses that the insurer does not acknowledge as valid reasons for receiving LTD benefits, or there may be insufficient medical evidence of disability provided to the insurer, which can explain your LTD claim’s denial. This is another instance when our long-term disability lawyers are well-suited to step in. We have represented many people throughout Ontario who have struggled with their LTD insurance companies.

What are my possible remedies if I am denied my LTD benefits?

The remedies that LTD lawyers can pursue for you are varied and will depend on your individual circumstances, the terms of the LTD contract you are claiming under, and what the law allows.

If your LTD claim has been denied outright and you have not received any LTD benefits at all, there will be reasons provided by your insurer, which we will need to consider. The same is true if you received LTD benefits for a certain period of time and were then cut off. In either case, if we have serious questions regarding the insurer’s actions, we will discuss the next steps, including the possibility of our firm being retained. In being upfront with you, however, if we feel that the insurer appears to have had reasonable cause to deny the LTD claim or terminate LTD benefits, we will tell you so, and we will also try to provide you with some guidance.

Can I appeal an insurance company’s denial of entitlement to long-term disability benefits myself?

Yes, you can, but it may not be a good idea. When they deny a claim, many insurance companies will advise you of your right to pursue an internal appeal by sending additional information supporting your claim – usually medical support – to the insurer. You will be required to pay any expenses associated with obtaining this additional information. In most cases, unfortunately, internal appeals do not result in insurance companies reversing their decisions to deny benefits. Worse, the limitation clock for commencing a lawsuit may start to run while you pursue these internal appeal processes. Time is, therefore, of the essence in putting together a case and commencing litigation against an insurance company that wrongfully denies you long-term disability insurance benefits.

If my insurance company refuses to pay me long-term disability, how long do I have to sue?

If your insurance company refuses to pay you long-term disability benefits, you should consult with a lawyer as soon as possible. Most policies require that you bring any objection to their attention within 30, 60, or 90 days. Many policies provide that a lawsuit for denial of benefits must be commenced within a year. There is, however, court authority indicating that long-term disability insurance claims are governed by the limitations statute and that you can commence a court action to dispute a denial of benefits for up to two years from the date of denial.

If I start a lawsuit, will I have to go to court?

The majority of lawsuits settle without going to court. Settlements, not court trials, are typically the preferred way to resolve LTD claims, wherever possible, because:

• Settlements leave direct control over the outcome of the case in the hands of the parties, rather than in the hands of judges who are strangers to the parties;
• Settlements can be reached at any time, rather than the parties having to await a trial that can be many years away;
• Settlements create certainty and are much less costly than trials for all concerned; and,
• Settlements eliminate the risk that one of the parties (the losing party at trial) will have to pay the successful party a significant amount in legal costs.
  

One of the most important but overlooked reasons for settlement is that they can and often do include an amount for future LTD benefits. Trial judges cannot order an LTD insurer to pay LTD benefits over a future period; the judge’s authority extends only as far as ordering past LTD benefits and interest if found to be due and ordering payment or reinstatement of LTD benefits under the terms of the contract. Those terms typically speak only to current, not future, entitlement for which the claimant must continuously qualify.

Can I claim punitive damages?

It is common for LTD claimants to feel angry, frustrated, disrespected, and mistreated by the disability insurer who has denied LTD benefits. They may feel strongly about suing the insurer not only for LTD benefits but also for punitive damages. Punitive damages are not considered ‘compensatory’ but, instead, are awarded against an insurer as a penalty to send a message that the insurer’s conduct is high-handed, malicious, egregious, or the like.

However, the reality is that our Courts rarely award punitive damages in LTD insurance cases, both because of contract principles and the finding that the insurer’s conduct, even if questionable, did not meet the high threshold required for punitive damages. A further reality is that insurers will rarely if ever, be willing to pay any amount representing ‘punitive damages’ as part of a long-term disability insurance claim settlement.

Is it true that if I start a lawsuit, the insurance company might hire a private investigator to conduct surveillance?

Yes, however, there are privacy and other rules about how and where a private investigator can conduct surveillance involving an individual. It is essential to consult with a lawyer and ensure that neither the insurance company nor the private investigator exceeds permissible boundaries.

Can a long-term disability insurance company force me to see a doctor of their choice for a medical assessment?

Before litigation commences, an insurance company is entitled to take reasonable steps to continue to determine whether or not you remain eligible for benefits. They are therefore entitled to request reasonable medical examinations. However, this right has limits. Further, if you are asked to travel for an assessment, you are entitled to ask for assistance, such as transportation, meal expenses, and even hotel accommodation if an overnight stay is required. After the lawsuit starts, the insurance company is permitted to arrange medical assessments in accordance with the Rules of Civil Procedure that govern the conduct of lawsuits.

What happens if I delay disputing an insurance company’s denial of long-term disability benefits?

If you delay disputing an insurance company’s wrongful denial of your entitlement to long-term disability benefits, you can lose your right to those benefits. This is why it is important to contact a lawyer immediately.

What If I belong to a union?

Finally, in some cases, a lawsuit against the disability insurer may not be available to you. The only recourse you may have is to file a formal grievance if you are a union member. Therefore, it is important to advise our long-term disability lawyers whether you belong to a union as part of your employment. If you do, the terms of the collective agreement between your union and your company will need to be reviewed to determine whether the grievance procedure is the ‘exclusive remedy.’ If the collective agreement appears to make your employer the party responsible for payment of LTD benefits, the LTD claim will likely have to be ‘litigated’ using the union grievance apparatus. On the other hand, if the terms of the collective agreement require only that your employer pays the long-term disability insurance coverage premiums to a disability insurer, or if the collective agreement is silent regarding LTD insurance, the likelihood is greater that you will be able to bring a lawsuit against the disability insurer for its denial of LTD benefits.

How much will my LTD claim cost me?

Reasonable efforts will be made to attempt to resolve your long-term disability claim as early and as cost-efficiently as circumstances will permit.

In representing you in your LTD claim, LTD lawyers will examine the terms of your long-term disability insurance policy, and the contents of your collective agreement (if you are a union member), and the insurer’s claim file. We will consider the medical and other evidence that supports or undermines your long-term disability claim, as well as the legal issues that must be addressed.

The payment of fees and HST on fees is normally delayed until the conclusion of the LTD claim and is dependent upon whether compensation is recovered for you. If compensation is recovered by settlement or judgment, a fund of money will exist, out of which legal fees will be paid. If there is no recovery of compensation, no fee will be charged to you by the firm.

Most lawyers that sue long-term disability insurance companies on behalf of claimants will agree to represent you for a percentage of whatever they can recover on your behalf. Generally speaking, if you are successful in your claim, the insurance company will pay a significant portion of your legal bill in the form of costs. However, you will be asked to pay a percentage of the recovery at the end of the day.

What about other expenses?

Apart from the fees mentioned above, every case requires that the law firm incur certain expenses. Most of the expenses that arise in an LTD claim file relate to obtaining necessary information to support the LTD insurance claim, such as medical records, expert assessments, and reports. Other expenses are incurred to move the case forward, such as the court filing costs, process serving fees, mediator’s fees, etc. As in the case of legal fees, the expenses that we incur will be charged against any recovery of compensation when the LTD insurance claim is concluded.

If there is no recovery of compensation, expenses will not be charged to you by the firm.

As part of any claim settlement, we will seek to recover an additional amount for ‘costs’ and ‘disbursements.’ This will help lower the overall amount you pay for fees and expenses out of your settlement.

When do I need a long-term disability lawyer?

An LTD insurance policy should be something you can rely on, although it is not always the case. If you or a family member is unable to work for an extended period due to an accident, illness, or injury, we recommend that you consult with a personal injury lawyer as soon as possible. A personal injury lawyer can help determine if you have a potential LTD claim against your insurer and advise you on how best to appeal if your long-term disability insurance claim is denied.

Gluckstein Personal Injury Lawyers are here to help.

At Gluckstein Personal Injury Lawyers, we consider all available remedies and decide upon the most appropriate course of action once we are retained and have sufficient information and evidence necessary to assess your long-term disability claim.

Gluckstein Personal Injury Lawyers offers free consultations and can help you navigate the complex area of long-term disability law.