In Canada, disability insurance is designed to provide financial support to individuals who are unable to work due to a medical disability – with the primary aim of ensuring that individuals have a source of income when they are unable to earn a living due to their health conditions.
However, the relationship between the insured individual and the insurance company can sometimes lead to complexities, especially when it comes to determining the readiness of an individual to return to work – which in most cases, happens at the two-year mark. Insurance companies, who are in business for profit, have a vested interest in ensuring that claims are legitimate and that individuals return to work as soon as they are medically able.
To this end, they often conduct regular reviews of a claimant’s medical status and work capability. These reviews can involve assessments by independent medical examiners or require the claimant to provide ongoing medical evidence of their disability.
However, the process of determining when an individual is ready to return to work is not straightforward and often involves a nuanced understanding of the individual’s medical condition, the nature of their job, and the broader legal and regulatory framework governing disability insurance in Canada.
If you believe your disability insurance company is forcing you back to work too quickly, or if you believe you are unable to work at all due to your medical condition, call us today. We have extensive experience dealing with disability insurance companies who force claimants into this predicament.
To understand the complexities surrounding for disability insurance company trying to force a claimant back to work, it’s important to understand the general course of disability benefits in Canada.
After the onset of disability, there is a period which is called the “elimination period” which, in the context of long-term disability (LTD) benefits in Canada, refers to a waiting period that starts from the onset of a disability and lasts until the claimant begins to receive LTD benefits. This period acts as a deductible in time rather than in dollars. It’s the duration during which an individual must be continuously disabled before being eligible to receive benefits under their LTD plan.
Typically, the length of the elimination period can vary depending on the specific policy, but common durations are 90 days, 120 days, or even 180 days. During this time, individuals are not eligible to receive LTD benefits and must rely on other forms of income or savings, if available. Some people might use sick leave, short-term disability benefits, or employment insurance sickness benefits during this period to bridge the financial gap until their LTD benefits commence. The specific details of the elimination period, including its length and the conditions under which it applies, are defined in the individual’s disability insurance policy.
Then, a disability claimant will typically collect long-term disability benefits for two years, if he or she is unable to complete the substantial duties of his or her own occupation. Medical evidence must be presented to support the fact that the claimant is unable to work his or her own job.
Then there is a very important juncture at the two-year mark, called the change of definition or the COD. The change of definition is a critical term in the context of long-term disability (LTD) benefits in Canada. It refers to a specific point in an LTD policy when the criteria for being considered “totally disabled” changes – and the criteria for receiving long-term disability benefits usually shift to an “any occupation” standard. At this stage, to continue receiving LTD benefits, the claimant must typically demonstrate that he or she is unable to perform the duties of any occupation for which they are reasonably suited by education, training, or experience. This is a more stringent standard, as it considers whether the claimant can work in any job, not just their pre-disability occupation.
This change of definition can significantly impact the continuation of LTD benefits. It’s a period where many claims are reassessed, and some claimants may find their benefits discontinued if the insurance company determines that they are capable of working in some capacity, even if not in their original job. Policyholders need to understand the specifics of their LTD policy, including when and how the change of definition occurs, to be fully informed about their coverage and rights.
As disability claimants in Canada approach the critical juncture of the change of definition in their long-term disability (LTD) benefits, a concerning pattern often repeatedly emerges of increased pressure from insurance adjusters for claimants to return to work.
However, this pressure can sometimes lead to situations where claimants are essentially set up for failure, particularly when they are not medically or mentally prepared to re-enter the workforce.
The issue often centers around the conflict between the assessments made by insurance adjusters and the medical advice provided by the claimant’s family doctor or healthcare provider.
Adjusters, focusing on the financial and procedural aspects of the insurance policy, may push for a return to work, sometimes overriding or disregarding medical recommendations. This can lead to a situation where claimants are enrolled in return-to-work (RTW) programs, despite not being in a suitable condition to handle the demands of a job.
Such programs are usually based on a shady transferable skills analysis, which theoretically identifies alternative occupations the claimant could pursue. However, these analyses do not fully take into account the individual’s current health limitations or the real-world challenges of finding suitable employment in their condition. In other words, it’s great that you can advise a person what they can do based on their education, training, and experience, but does it matter in the long run, if the person is still sick or hurt?
This dichotomy places claimants in a precarious position. On the one hand, there is the authoritative advice of their treating physicians, who may advocate for continued rest and recuperation. On the other hand, there is pressure from the insurance company, often manifested through frequent communications and requirements to participate in vocational assessments or RTW programs. Time and time again, we have seen the disconnect between medical advice and insurance policies leaving claimants feeling coerced into attempting work they are not ready for, both physically and mentally.
The implications of being prematurely pushed back into the workforce can be significant. Not only does it risk the health and well-being of the claimant, but it can also lead to a cycle of failed work attempts, further exacerbating the individual’s condition and potentially leading to a more complicated and prolonged disability claim process.
This scenario underscores the importance of a balanced and fair assessment process in LTD claims, one that truly considers the individual’s medical state and readiness for employment, rather than being predominantly driven by policy timelines and financial considerations.
Then, sometimes the worst part is the soured relationship that emerges between the adjuster and claimant, which in turn, increases the mental stress, anxiety, unease, and apprehension of the sick individual.
Did you know that most disability insurance policies have provisions in them that allow a person to try and go back to work without penalty? It is called the “recurrent disability” provision.
The recurrent disability provision in long-term disability (LTD) insurance policies is a very important feature for claimants who are attempting to return to work after a period of disability. This provision is designed to protect claimants in the event that they attempt to go back to work but find that they are unable to continue due to a recurrence of their original disability or a related condition.
A recurrent disability is typically defined as the reappearance of symptoms or the worsening of a condition that had previously led to a disability claim, occurring within a certain period after a claimant returns to work. This period varies by policy but is commonly within six months to a year of the claimant’s return to work.
As noted above, when a person files for LTD benefits for the first time, they must go through an elimination period (a waiting period) before long-term disability benefits begin. However, with a recurrent disability provision, if the claimant’s disability recurs within the specified time frame, they usually do not have to undergo a new elimination period. Instead, their benefits can be simply reinstated immediately or after a much shorter waiting period.
Normally to qualify under this provision, the recurrence of the disability often has to be due to the same or a related cause as the original disability. If the new disability is due to a completely unrelated cause, it may be treated as a new claim subject to its terms and conditions.
The recurrent disability provision is important because it encourages claimants to attempt to return to work without the fear of losing their benefits entirely if they find they are still unable to work. It provides a safety net, making the transition back to work less risky.
But the truth behind the recurrent disability provision and attempt to return to work, in our experience, is far from what it seems. In many cases, disability adjudicators make false promises by making the claimants feel “ensured” that they can try to go back to work – and if there would be no issue with restarting their monthly disability payments if they are unsuccessful in attempting to return to work.
The claimant feels comfortable and reassured that he or she will be protected if their return to work fails – but unfortunately most of this time – this is not the case.
We have seen firsthand that after a disability claim returns to work, their file with the disability insurers is simply closed. Then when the return to work fails, the disability carrier fails to re-open the file, or, as the alternative, forces the claimant to produce excessive and never-ending medical documentation to prove that the return to work failed. In other cases, we have seen firsthand that when a claimant tries to get back on disability benefits after he failed to return to work, the insurance company changes adjusters, and the new adjuster “railroads” to claim it away from a successful reinstatement of disability benefits.
In many cases, disability claimants are collecting CPP disability benefits – which are very difficult to obtain. To be approved for Canada Pension Plan (CPP) disability benefits, an individual must meet two primary criteria: they must have a “severe” and “prolonged” disability, and they must have made sufficient contributions to the CPP. “Severe” means that the disability regularly prevents the individual from performing any substantially gainful work, and “prolonged” indicates that the disability is long-term and of indefinite duration, or is likely to result in death.
Now, a person collecting CPP disability is entitled to earn part-time income – but only up to [approx.] $6600.00. Any income earned over $6600 needs to be reported to the Canadian pension plan.
It often becomes contentious and confusing to a disability claimant collecting CPP disability benefits at the change of definition. Long-term disability carriers often make the argument that they claim it could do “some type of work” (unfortunately this is not the actual test but adjusters tend to use it anyway).
If you are suffering from a serious disability and both you and your medical providers are of the opinion that you cannot return to work, do not let your disability insurance company pressure you into making an “attempt” to return to work.
Claimants must be fully aware of their rights under the ‘recurrent’ disability provision. While this clause offers a safety net for those attempting to return to work, it’s often observed that disability insurers exert considerable pressure on claimants to resume employment, especially when the definition of disability is set to change under their policy. If you, as a claimant, do not feel physically or mentally prepared to return to work, it’s essential to stand firm against this pressure. Making a premature return to the workplace can not only jeopardize your health but it can also complicate your claim should you need to reapply for benefits. Remember, your readiness to work should be determined by your own health status and the advice of your medical professionals, not by the insurer’s timelines or definitions.
Our long-term disability lawyers have been representing claimants at all stages of their disability claims for nearly 40 years. We not only understand the pain and financial hardship that follows the termination of disability benefits, but also the stress and mental aggravation that you are more likely then not facing with your insurance adjuster – of even worse, that you feel mislead into returning to work.
Our long-term disability lawyers are here to help you secure the disability benefits that you need and deserve so that you can focus on your recovery without added financial strain. If you or a loved one is living with colon cancer and has been denied long-term disability insurance benefits – or – your long-term disability benefits have been wrongfully terminated, contact us today. We are here to help you secure the disability benefits you deserve so that you can focus on your recovery without added financial burdens.
We are located in Hamilton, Ontario and represent disability claimants nationwide.
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