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

When you hear the term Post-Traumatic Stress Disorder (PTSD) you may think about a condition that affects war veterans or people who work in emergency services or those who have suffered abuse, disasters or major illnesses and accidents.  However, the condition can also result from highly personal traumatic events like losing a job or a business, divorce, failing to achieve a goal, loss of a loved one, seeing, hearing or reading about of a death or other traumatic event, personal injury, childhood trauma or any other life-altering experience.  PTSD can affect people of any age, culture or gender and that the condition may or may not rear its ugly head until months or years after a traumatic event.  

In our experience representing clients with PTSD in their Long-Term Disability (LTD) benefit claims, we have known clients who have been continuously disabled due to PTSD from the time of the traumatic event and have struggled ever since to recover, despite many months and sometimes years of intensive, ongoing treatment.  

However, more often than not, the clients we see have been only recently diagnosed with PTSD, many years after a traumatic event.  The diagnosis comes when the trauma resurfaces due to some recent event in their lives such as harassment at work, spousal abuse, termination of employment, or some other occurrence that triggered or brought the original trauma back to the forefront of their lives.  

While proving to an insurance company that you are unable to work due to any mental health-related condition can be challenging, if you are suffering from PTSD, you are likely to encounter some unique challenges, particularly when you have failed to prove your initial claim for LTD benefits and you are considering how to deal with the denial of your LTD claim; either by way of appeal or litigation

In this article we will discuss why LTD claims for PTSD are likely to be denied by insurance companies; we will provide you with some practical tips on how to successfully prove long-term disability due to PTSD to your LTD insurance company, and we will also provide you with some important direction on how best to proceed if your LTD claim for PTSD has been denied.  We hope that this information will help you navigate your LTD claim for PTSD and mitigate the worsening of your condition if your claim has been denied.  

What is Post-Traumatic Stress Disorder (PTSD)?

According to the Centre for Addiction and Mental Health (CAMH), Post-traumatic stress disorder (PTSD) is a natural emotional response to frightening or dangerous experiences that involve actual or threatened serious harm to oneself or others. For example, PTSD may develop as a response to traumatic life events, such as car crashes, fires, bombings, rape, torture or seeing a family member, friend or other person harmed or killed. Being involved in a natural disaster, such as a hurricane, flood or earthquake, can also lead to PTSD. 

Post-Traumatic Stress Disorder (PTSD) and COVID-19

In terms of traumatic events, in recent months, we have had inquiries from people who have been diagnosed with PTSD as a result of COVID-19.  In some circumstances, the person had been diagnosed with COVID-19. In other cases, they have lost or feared losing a loved one to the virus.  In more complicated cases, the pandemic itself triggered a response to a past traumatic event.  Many of these inquiries have come from people who are either beginning the process of applying for LTD benefits and need guidance in terms of how to prove their LTD claim or from people whose short-term disability (STD) or LTD benefits have been denied.  

Mental health-related disability claims during the pandemic have likely increased for conditions like anxiety and depression; conditions that have either been caused or aggravated in otherwise healthy people who may have been functioning well previously and who have no prior history of trauma or mental illness.  However, for those who have suffered a past traumatic event, the COVID-19 pandemic has served to trigger the often much more serious and complicated mental health condition of PTSD.  

In speaking to some of these individuals about their PTSD in the context of their LTD disputes, we understand that factors such as social and physical isolation; risk of illness and death; restrictions by government; continuous news and media reporting of the pandemic; mask wearing; and a whole host of other factors and circumstances associated with the COVID-19 pandemic have caused a triggering response a trauma they had suffered in the past.

Signs & Symptoms of Post-Traumatic Stress Disorder (PTSD)

According to CAMH, PTSD will usually appear within three months of the traumatic event, but sometimes symptoms may not appear until many years later.  In many of the PTSD LTD benefit cases we have had, the condition and symptoms of PTSD have arisen long after the traumatic event.  This may be partly the reason these LTD claims were denied. 

Whether the condition has been continuous or whether it has arisen much later, the symptoms of PTSD can be debilitating and affect every area of a person’s life and functioning.

In terms of symptoms, CAMH provides the following list of common symptoms:

  • re-experiencing the traumatic event over and over
  • having recurring nightmares
  • experiencing unwanted, disturbing memories of the event
  • acting or feeling as if the event is happening again
  • feeling upset when reminded of the event
  • staying away from activities, places or people that are reminders of the traumatic experience
  • avoiding friends and family
  • losing interest in activities that used to be enjoyable
  • experiencing difficulty having loving feelings
  • being unable to feel pleasure
  • constantly worrying
  • having a hard time concentrating
  • getting angry easily
  • having trouble falling asleep or staying asleep
  • fearing harm from others
  • experiencing sudden attacks of dizziness, fast heartbeat or shortness of breath
  • suicidal thoughts
  • symptoms of anxiety and panic attacks
  • having fears of dying.

It is not difficult to imagine how these symptoms would have a serious and debilitating effect on a person’s functioning; including with respect to their ability to work. Unfortunately, LTD insurance companies are not in the business of “imagining” how a person with PTSD is prevented from working.  Rather, insurance companies are in the business of looking for “objective” findings as evidence of disability.  Based on the denied claims we see, insurance companies seem to continue to find it difficult to assess the severity of PTSD symptoms and determine how those symptoms prevent a person from performing the duties of their own or any occupation (which is typically the test of disability, depending on the wording of the insurance policy).

Post-Traumatic Stress Disorder (PTSD) Causing Disability

For some people, the thoughts or memories of past traumatic events can have serious implications for their health and functioning in their day-to-day lives, long after the danger or threat has passed. Without proper treatment and support, PTSD can cause long-term disability.  Even with proper treatment, the road to recovery can be long.

The risk of PTSD, the severity of symptoms and the recovery period will depend on a number of factors, including: 

  • having a history of mental health or substance use problems;
  • feeling helplessness or extreme fear;
  • having appropriate treatment and a support system after the traumatic event
  • feeling guilt, shame or responsibility for the event or its outcome
  • experiencing additional stress after the event, which may include, the loss of a loved one, other pain and/or injury, loss of a job or home

In addition to the above list, in our experience representing clients with PTSD, the denial of a claim for LTD benefits by an insurance company can also have devastating implications for those already struggling with symptoms of PTSD.  A denial of LTD benefits can serve to prolong the recovery period by re-triggering the initial trauma and by extinguishing funds that would otherwise be available for treatment.  An LTD denial also results in serious financial distress caused by not having an income.

Long-Term Disability Claims Due to Post-Traumatic Stress Disorder (PTSD)

Nearly all of our clients struggle with some degree of mental health-related illness. For many, their mental health condition is the sole cause of disability and for others, it may be a condition secondary to their physical disability.  Post-Traumatic Stress Disorder (PTSD) is one of those conditions that our clients may have as either a primary disabling condition or as a secondary cause of disability.  In other words, sometimes our clients are disabled solely as a result of PTSD and sometimes our clients with PTSD are also struggling to work due to a number of other conditions, which we’ve found will commonly include, chronic fatigue and chronic pain conditions.

Whether it is the main cause of disability or whether it is one of a number of other reasons a person is unable to work, we have noticed in recent years that PTSD has become a much more common diagnosis in the denied LTD claims that we see in our law practice. It is unclear to us whether this increase in the number of clients we see suffering from PTSD is due to better or more accurate diagnoses and assessment of the condition by health professionals or whether PTSD has become a more prevalent or more widely accepted mental illness in our society, generally.  Either way, an increase in these types of LTD cases in our law practice suggests to us that insurance companies are continuing to struggle to assess and approve LTD claims for PTSD.

Diagnosis & Treatment of Post-Traumatic Stress Disorder (PTSD)

While some people can and do recover from PTSD quickly (often within six months or so) and never need to make an LTD claim, others take much longer to recover and regain their functioning.  Since LTD insurance companies rely mostly on objective measures and also medical guidelines for expected recovery times, and since PTSD can manifest in different symptoms and recovery times may differ between claimants, it is difficult for insurance companies to assess whether a person’s claim is legitimate or whether the person is actually well enough to work and the claim should be denied. 

Diagnosing and determining the severity of symptoms of PTSD, as with all other so-called “invisible conditions” (like other mental health conditions, chronic fatigue and chronic pain conditions), is based on subjective findings.  This means that the treatment providers who diagnose and treat PTSD must rely on the patient’s self-reported symptoms to make the diagnosis of PTSD; to gauge the severity of symptoms; to determine appropriate treatment; and, upon which to base their opinions regarding the person’s functioning and their ability to return to work. (For more information about LTD claims for “invisible conditions”, please refer to our previous article, “Struggling to be Seen & Believed: Making an LTD Claim for an Invisible Condition”).

Proving Long-Term Disability Due to PTSD to the Insurance Company

As with all claims for LTD, “appropriate treatment” is key.  LTD insurance policies have clauses that state that the insurance company will not pay benefits where they deem that the claimant is not receiving appropriate treatment.  However, in LTD claims for PTSD, treatment is also critical to proving that the person has this serious mental health condition and that is so severe as to prevent the person from working. In other words, it helps the insurance company to understand how unwell you are if your family doctor refers you to specialists for treatment or if you have been prescribed medication types and dosages that would be used to treat a severe condition.  

In terms of “appropriate treatment”, we have seen insurance companies be satisfied with our PTSD clients receiving trauma counselling or therapy (individually or in a group). They would also expect to see that psychiatrists and family doctors have prescribed medication for depression, anxiety, panic and sleep issues, which are common in people with PTSD. Ideally, LTD insurance companies would like a person with PTSD to have treatment in the form of both medication and counselling or therapy.  

Unfortunately, due to the ongoing shortage of psychiatrists and other mental health care treatment providers (and in particular, those specializing or experienced in treating PTSD), our clients have experienced difficulty obtaining the treatment that they need for their recovery and also to prove their LTD claims. 

 Another factor is often our client’s lack of funds to pay for treatment for services that are not funded by OHIP.  For that reason, it is important the clients with PTSD advocate for themselves to get the necessary referral to a psychiatrist as soon as possible, to demonstrate how serious their condition is and to ensure that an appointment will eventually take place to support their initial LTD claim or to support their case in litigation.

In addition to psychiatrists, the past our clients have sought treatment from other supportive sources, including:

  • family service agencies
  • community mental health agencies
  • counsellors or therapists
  • family doctors
  • community health centres
  • religious leaders
  • settlement agencies
  • workplace employee assistance programs (EAPs).

Functionality is Key to Proving Long-Term Disability Due to PTSD

In addition to getting appropriate treatment and referrals to specialists, it is important to impress upon the insurance company how your symptoms affect your ability to perform the duties of your job. The insurance company is assessing your claim based on your functioning.  In PTSD cases, you may have functional restrictions and limitations that affect your ability to work, including difficulties with concentration, memory, focus, emotional regulation, fatigue, etc.  

However, your mental health might also have taken a toll on your physical health, causing conditions such as chronic fatigue and chronic pain conditions.  It is important to include in your claim all symptoms and conditions that are affecting your functioning.  This will give the insurance company more to work with when determining whether you are totally disabled from your own or any occupation (as defined in the insurance policy. 

MK Disability Lawyers can Help Prove Disability Due to PTSD 

Applying for LTD for a condition stemming from PTSD is a difficult task, at the best of times, and even more so when you are struggling with the symptoms of PTSD.  It is important that you get help where you can to ensure that your application is complete, accurate and most of all, persuasive to your insurance company to increase the likelihood that your claim will be approved and to avoid the stress of appealing or litigating a denial. 

From decades of experience litigating LTD claims for PTSD from both sides (as in-house counsel for insurance companies defending LTD claims and as plaintiff’s counsel, representing disabled persons in their complex LTD disputes with all insurance companies in Canada), we know that PTSD LTD claims (as well claims for chronic pain, chronic fatigue and other mental health conditions) are one of the most common types of claims that are denied or later, terminated.  We understand why these claims were not successful and how to persuade insurance companies of their legitimacy and resolve these disputes for our disabled clients. 

Together, our three law partners have over 50 years of LTD litigation experience representing professionals, self-employed individuals, teachers and other employees with PTSD and similar “invisible” conditions.  It is our hope that our suggestions will increase the likelihood of these claims being approved early on so that you can focus on your recovery without the added anxiety over possibly losing your income and other health-related benefits and possibly, losing your job or business.

Help With Your STD or LTD Application, Appeal and Litigation

We encourage you to contact MK Disability Lawyers LLP if your STD or LTD claim has been denied or terminated by your insurance company. We offer free consultations to help you decide whether to appeal the denial of your claim or whether to proceed straight to litigation.  Remember, there is no requirement that you appeal the denial or termination of your STD/LTD claim.  (Note: Unionized employees may be required to grieve STD and/or LTD denials/terminations, depending on the wording of their collective agreements.  We are able to review collective agreements for jurisdiction over STD/LTD issues.)

As an added support, we are offering free consultations at the sick leave, STD, LTD application stages.  If you are considering sick leave and/or applying for STD or LTD for PTSD (and/or for another “invisible condition”), we encourage you to contact us to schedule a time for us to discuss the details of your disability 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 the insurance company 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 your employer and insurance company and union, we have the unique perspective that comes only from seeing and litigating countless LTD claims for conditions, such as PTSD (and all variety of other medical conditions) 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 worked for insurance companies defending LTD claims.  If you have specific questions about LTD claims for PTSD or any other type of disability, please contact us 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 articles:
LTD and COVID-19: Applying for Disability Benefits During COVID-19,” “LTD and COVID-19: Mental Health Claims Related to the Pandemic” and “Struggling to Be Seen and Believed: Making an LTD Claim for an “Invisible Condition” and our “Guide to LTD for Union Representatives”, as well as other information related to applying LTD.