MK Disability Lawyers' Statement on COVID-19 - Read Post

Teachers, we know you have been under significant stress for many months, now.  First, there were the contract disputes and rotating strike days, and then when it seemed as though things were finally looking up and settling down, the pandemic hit.  You worked hard, scrambling to support our children online for months with little preparation or resources to help you, while also dealing with your own personal stress and worries around the pandemic.  You may have felt some relief at the start of the summer, only to be catapulted back into a state of uncertainty and anxiety as the new school year quickly approached.  (Please see our open letter to teachers, “Dear Ontario Teachers: Preparing for the Unknown”.)

These past few weeks leading up to your return to work have been filled with announcements, return-to-school plans and a barrage of anxiety-provoking social media posts from all fronts.  It’s enough to make anyone’s head spin.  It would be no wonder if you are feeling emotionally drained at the very least and, more than likely, you are feeling some degree of anxiety and panic about returning to school, with so much still unknown.  

For some of you, while it will be difficult to adjust to the “new normal” and then pivot as things are sure to evolve over the school year, you will somehow manage the stress of all that is thrown your way and, ultimately, push through.  For others, the stress of returning to school this year and teaching either in-person or online, could have serious implications for your mental health.

Mental Health Conditions Resulting in OTIP LTD Claims

It may be that the accumulated stress of these past several months and recent weeks has caused an aggravation of a pre-existing mental health-related condition or it could be that all this stress has triggered a new mental illness.  In either case, you may find that your mental health is suffering.  For some of you, your mental health may be severely limiting your ability to perform your duties as a teacher, let alone perform your regular daily activities (such as parenting, socializing, self-care, housekeeping, recreation, reading, communication, etc.).  

As you probably know, some of the most common mental health conditions are: depression, anxiety, personality disorders and bi-polar disorder.  These conditions can severely limit your ability to work and may form the basis for an OTIP long-term disability claim.  

Of those conditions, over the past several months, we have seen a surge of claims based on depression and anxiety.  According to the World Health Organization, depression is a leading cause of disability, affecting approximately 300 million people worldwide and can lead to long-term disability.  According to WebMD, the most common types of depression are: major depression, persistent depressive disorder, bipolar disorder, seasonal affective disorder (SAD), psychotic depression, peripartum (postpartum) depression, premenstrual dysphoric disorder (PMDD), “situational” depression, and atypical depression.  

Teachers Struggling with Depression

While you may feel “off” or “not like yourself”, you might not realize that you could be experiencing symptoms of depression and anxiety.  Some symptoms for you to look out for now, in the coming weeks and in the coming months, include:

  • Persistent sad, anxious, or “empty” moods
  • Feelings of hopelessness or pessimism
  • Fatigue
  • Irritability
  • Feelings of guilt, worthlessness, or helplessness
  • Loss of interest or pleasure in hobbies and activities
  • Decreased energy or fatigue
  • Moving or talking more slowly
  • Feeling restless or having trouble sitting still
  • Difficulty concentrating, remembering, or making decisions
  • Insomnia, early-morning wakefulness, or sleeping too much
  • Appetite or weight changes
  • Thoughts of death or suicide, suicide attempts
  • Aches, pains, headaches, or cramps and digestive problems without a clear physical cause and that do not ease even with treatment

Teachers Struggling with Anxiety

In addition to depression, we see many teachers and other professionals suffering from anxiety and panic disorders.  There are several types of anxiety disorders: generalized anxiety disorder, panic disorder, social anxiety disorder, phobias, agoraphobia, separation anxiety, selective mutism and medication-induced anxiety disorder.  These conditions alone, or combined with depression, can be difficult to manage and often requires intensive treatment to improve functioning to the extent that returning to work is possible.  

According to WebMD, the main symptom of anxiety disorders is excessive fear or worry. Anxiety disorders can also make it hard to breathe, sleep, stay still, and concentrate.  Your specific symptoms depend on the type of anxiety disorder you have.  Many of the teachers we have spoken with in recent weeks are experiencing many of these and other symptoms of anxiety.  Some teachers will be able to manage and overcome their anxiety, while others may struggle to function or return to or continue to teach.

Some of the most common symptoms of anxiety to look out for are: 

  • Panic, fear, and uneasiness
  • Feelings of panic, doom, or danger
  • Sleep problems
  • Not being able to stay calm and still
  • Cold, sweaty, numb, or tingling hands or feet
  • Shortness of breath
  • Breathing faster and more quickly than normal (hyperventilation)
  • Heart palpitations
  • Dry mouth
  • Nausea
  • Tense muscles
  • Dizziness
  • Thinking about a problem over and over again and unable to stop (rumination)
  • Inability to concentrate
  • Intensely or obsessively avoiding feared objects or places

Unable to Perform Duties of Your Regular Assignment

Symptoms of mental illness, and most commonly symptoms of depression and anxiety can impede your ability to perform the “duties of your regular assignment” and make it impossible for you to work, let alone perform many of your other responsibilities.   

You might find it difficult or impossible to plan and prepare lessons, engage and teach students, complete marking, evaluate student performance, attend and participate in meetings, be on time for classes, be mentally present while teaching, promote a positive learning environment, learn and adapt to teaching online, and to enforce and comply with the countless health and safety protocols that are expected to be in place.  

However, if you are struggling, it is important you seek medical attention and possibly help from your union or a lawyer, as soon as possible to ensure that your LTD claim is approved in the first instance and if not, to be prepared to dispute any potential denial. 

Knowing your limits and knowing when and if to stop working and apply for Sick Leave is critical.  Stopping work while you are still functioning fairly well and completing your duties, may not be a good idea and could lead to the denial of your sick leave and LTD claims.  Continuing to work while you are not well could strain your relationship with your colleagues, students, administrators and your board.  Sick leave could be a way to take some time to recover while preserving your relationships with your employer.  

You may also wish to consider accommodations to allow you to continue to work.  It is important that you do not agree to accommodations that essentially change your regular assignment to the extent that you are no longer doing your regular duties nor earning your regular income.  Working part-time could jeopardize a future OTIP LTD claim.  

If you are considering going on sick leave or applying for LTD or considering accommodations, it is important to speak to your union or to a lawyer to ensure that your rights under your plan and your employment rights are protected. 

OTIP Definition of Disability

Under the OTIP LTD plan, to be eligible for benefits, for the first part of your claim (the qualifying sick leave period and the following 24 months) you are considered disabled if, because of illness or injury, you are unable to perform the significant duties of your regular assignment.  After this period, you are considered disabled if, because of illness or injury, you are unable to be gainfully employed.   

The OTIP LTD definition of disability is all about functioning.  As with other types of “invisible” conditions (conditions for which there is no objective testing, like x-rays or blood tests, etc.), you will need to be able to prove to OTIP that your mental health condition is so severe that it limits your ability to do your duties as a teacher (either in the classroom or online).  

Proving Your Mental Health LTD Claim to OTIP

Mental health based LTD claims can be very difficult to prove and often result in litigation when OTIP or some other insurance company denies the claim on the basis that the person’s symptoms are “self-reported” or that there is “no objective medical support” for the claim or that treatment is “not indicative of a severely disabling condition” or that there is simply “insufficient evidence” to support disability.  

Despite the challenges of supporting these claims, mental health disabilities are real and can be serious and long-term.  These are legitimate claims that may need the assistance of your union or a lawyer to help you persuade OTIP of your inability to work.   It is important to have an extensive medical record of your condition.  When you see your doctor there will be a record of what you said and about the nature and severity of your condition and the treatment prescribed and the effectiveness of treatment.  Be open and honest with your doctor, to ensure that the records are a true reflection of your condition because OTIP, like other insurers, may misinterpret something written in your medical records and rely on that information to deny or terminate your LTD benefits. 

Comply With Treatment Recommendations to Support your OTIP LTD Claim

In terms of treatment, OTIP can deny or terminate your claim, if you are not receiving appropriate treatment.  Since depression and anxiety, like many other mental health conditions, are treatable, OTIP will expect that your condition will improve with treatment.  While OTIP and you will want a quick resolution of your symptoms and a quick return to your functioning and teaching, this is not always the outcome.  

It is helpful to argue you have a severe condition if you attended regularly for treatment, sought the assistance of specialists (such as psychologists, psychotherapists, social workers, psychiatrists, group therapies) and followed doctors’ orders with respect to medication and other recommendations such as exercise.  OTIP may then be better able to extract the nature and severity of your condition based on the recommendations of your doctors and the type of treatment you have been prescribed. 

Include Physical Conditions in Your Mental Health OTIP LTD Claim

In addition, any physical symptoms that your depression or anxiety may present will likely help your case because physical limitations are more objective and more easily assessed and understood to be debilitating.

You and your doctors may find it simpler to document and record symptoms such as fatigue, aches, and digestive problems than irritability, sadness, dark feelings, and anxiety. If you have physical symptoms resulting from your mental health conditions or if you have other physical symptoms (such as pain or sleep disorder) which have been aggravated by your mental health condition, it is critical to include these conditions, at the outset and in your initial claim form for benefits.  You can also remind your doctor to include these conditions in the form he/she will submit on your behalf.  

The Importance of Disputing a Denial of Your OTIP LTD Claim

Sometimes it takes many months and even years to return to normal functioning. It is therefore critical to dispute any denial or termination of your benefits.  A lack of income during recovery from a mental illness can have serious consequences, not only for your financial future (impacting your pension, as well) and also for your long-term prognosis for recovery.  

We know how incredibly difficult it can be for people with severe depression and anxiety to seek proper treatment, let alone contact their union or a lawyer to help with the denial or termination of their OTIP LTD claim.   However, the teachers who we speak with often feel a greater sense of relief that comes from the information and support that we provide during their claim and by taking over their dispute with OTIP, allowing them to focus on their treatment and recovery. 

Help With Your OTIP LTD Application, Appeal and Litigation

We encourage you to contact us if your LTD claim has been denied or terminated by OTIP. We offer free consultations to help you decide whether to appeal the denial of your claim to OTIP or whether to proceed straight to litigation, suing OTIP and the insurance company.  There is no requirement that you appeal or grieve the denial or termination of your OTIP LTD claim.  

As an added support, during this pandemic only, we are offering Ontario Teachers free consultations at the sick leave/LTD application stage.  If you are considering sick leave and/or applying for LTD, we encourage you to contact us to schedule a time for us to discuss the details of your LTD claim.  We will discuss the claims process with you, provide you with direction with respect to what to include in your initial claim and review of your claims forms before you submit them.  Every claim is different and it is important that you use wording and provide medical evidence that will be most supportive and persuasive to OTIP and result in the approval of your claim.  

We appreciate that there are a number of resources available to help you in your LTD claim application and appeal.  Unlike many other resources provided by OTIP (such as your school board and your union), we have the unique perspective that comes only from seeing and litigating countless OTIP LTD claims that have been denied or terminated and we can use that insight and experience to help you avoid those outcomes.  One of our partners, Courtney Mulqueen, also has the added insight that only comes from having defended OTIP LTD claims.  

If you have specific questions about LTD, please contact MK Disability Lawyers to schedule a free individual consultation.  We also invite you to visit our website www.mkdisabilitylawyers.com, where you will find an extensive collection of blog articles about LTD, including our most recent article for teachers “Preparing for the Unknown”, our “Guide to LTD for Union Representatives”, as well as information related to applying LTD during COVID-19.