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

You are exhausted.  You are in pain.  You can hardly concentrate. Your memory is shot and you are feeling depressed and anxious.  You may still not (and may never) know what is causing you to feel the way that you do.  The one thing you do know is that there is no way that you will be able to do what is required of you at work.  

“Invisible Conditions” Are Difficult to Prove

Your family, your colleagues, your doctors–they try to be supportive, but you wonder whether they believe you.  You do not want to be perceived as malingering or exaggerating.  You want to be believed and supported.  Unfortunately, while you may be very good at explaining to your doctors and others how you feel and how your symptoms prevent you from functioning in your daily life, including working, some people will still not be convinced that you are ill or as severely ill, as you describe yourself to be.  

This skepticism may be extremely hurtful or at the very least aggravating, if it comes from those you love and from those who you thought you could count on to believe and support you.  However, when the skepticism comes from your insurance company in the form of a denial or termination of your LTD benefits, it can be downright devastating.  

Your Insurance Company Denied Your LTD Claim for an “Invisible Condition”

Financially, you were relying on your insurance company to provide you with a percentage of your income and to protect your other insurance (like life insurance) while you remain disabled.  Without this income from LTD benefits, it will be impossible for you to meet your personal and family’s financial obligations and the risk to your other life and health insurance benefits could have serious consequences, down the road.  The stress of having no income and not being able to work can also have serious and long-lasting effects on your mental health and serve to aggravate your existing physical symptoms. 

You provided your LTD claims forms to your insurance company (or insurance benefits administrator).  You were sure that they would approve your claim.  You went to great lengths to describe your symptoms and treatment and explain why you are not able to work. Your doctor, she detailed your symptoms, described your treatment and set out a long list of functional restrictions and limitations.  She even attached consultation reports from all the specialists you have seen and indicated upcoming referrals to other specialists and treatment providers.  She stated, right on the form, that you are disabled from work and that your prognosis for return to work is unknown. Surely, this will be sufficient medical evidence to support your LTD claim.  

Not so. You receive a detailed 3-page letter from your insurance company.  The bottom line is that your LTD claim has been denied.  What are you to do? Was there anything you could have done differently to have ensured that your LTD claim was approved? Is there a way to now appeal or litigate the denial/termination by proving to your insurance company that your illness is truly preventing you from returning to work?

No “Objective” Evidence of Disability for “Invisible Conditions”

The fact is that insurance companies like “objective” evidence of disability. Objective evidence of disability makes it far simpler for them to determine the nature and severity of a disabling condition and assess whether someone is not functionally able to work and therefore eligible for LTD benefits.  

For example, it is easy for someone to rely on x-rays and MRI’s to prove that walking, sitting, and standing are not possible due to visible evidence of damage to the person’s back.  If these functional abilities are necessary to complete the “essential duties” of that person’s “own occupation”, then the person’s LTD claim will likely be approved without much more investigation.

Unfortunately, many types of serious disabilities do not lend themselves to being identified by “objective” measures, such as x-rays, CT-scans, blood tests, and other types of measurable diagnostic testing.  For example, chronic pain and chronic fatigue conditions are very common disabilities that do not lend themselves to diagnosis by way of the usual objective tools or measures.  You may claim to not be able to work due to pain or fatigue, but how does your insurance company know that these “self-reported” restrictions and limitations truly exist or are truly as severe as you claim?

Why Do Insurance Companies Deny LTD Claims for “Invisible Conditions”?

Insurance companies and plan administrators are in a tricky spot when it comes to “invisible conditions” or conditions for which “objective findings” are not possible to provide.  On one hand, insurance companies are in the business paying legitimate claims to people who are not medically able to work.  Most insurance companies advertise that their mandate is to support dedicated, hardworking people who have either been paying their own premiums or whose employers have been paying premiums for the purpose of protecting their incomes and other benefits, in the event that they are not able to work due to any type of illness or injury.  

On the other hand, insurance companies must also be mindful of their financial obligations to everyone they insure; particularly, with respect to maintaining or reserving sufficient assets or funds to ensure that benefits are available to pay all legitimate LTD claims and other financial obligations to any and all insured members or policyholders.  Insurance companies have a duty to carefully assess all LTD claims to ensure that only those people who satisfy the “definition of disability” in their plan or policy are paid benefits and only for so long as they continue to meet the terms and conditions of the plan/policy. 

Short-Term Disability – The First Step Toward Claiming LTD for an “Invisible Condition” 

If you are experiencing disabling symptoms, such as pain, fatigue, depression, or anxiety, and these symptoms are impacting your ability to function in your normal daily activities, including in your work, then you will need to consider your options. 

Assuming that your condition is so severe that no accommodations will allow you to do the “essential duties of your own occupation”, then you will need to apply for Sick Leave through your employer.  This may be done through an application for Short-Term Disability (STD) benefits to an insurance company or a plan administrator.  If your employer does not have STD benefits, you may be paid your salary by your employer and/or you may need to apply for Employment Insurance Sickness Benefits (15 weeks). 

The medical information you provided to your employer or in your STD claim might have been sufficient for your employer grant you Sick Leave or to be approved for STD benefits or EI Sickness benefits, however, you the same information might not be sufficient to be approved for LTD.  

Remember that your employer is not entitled to know your diagnosis; only the nature of your condition and your functional restrictions and limitations and your prognosis.  

Sick Leave (a leave of absence) could be easier to get since you do not need to provide a diagnosis to your employer; which you might not have at this point.  Further, there can be no prejudice against “invisible condition diagnoses” like chronic pain or chronic fatigue or multiple-chemical sensitivity, if your employer does not have that information.

If, for whatever reason, your employer did not approve your Sick Leave claim or you are not approved for STD benefits, you may seek assistance from your union (if you are unionized, a grievance may be necessary) or contact a lawyer, right away.   It is important to take these steps, even if you do not feel up for the fight.  Your long-term financial and emotional health are at greater risk if you do not have an income and are not able to work.  At MK Disability Lawyers, we can consult with you, at this stage (whether or not you are unionized)  if you feel that our expertise might help you in proving your Sick Leave or STD claims. 

While on Sick Leave or STD or while going through the process of disputing the denial of your Sick Leave or STD application, it is critical to remember that you will still need to submit an application for LTD benefits to your insurance company, within the required timeframe; usually a within a few months of the end of the Sick Leave/STD period and before the start of your LTD period.  

Your LTD insurance company will need to do its own assessment of whether you have been continuously disabled throughout the Sick Leave period and into the LTD period.  If you do not apply for LTD because your Sick Leave/STD was denied or terminated, you may prejudice your LTD claim.  We encourage you to contact us if your Sick Leave or STD has been denied or terminated.  We can provide assistance to help you with your Sick Leave/STD dispute and also with your LTD application.  

Tips for Applying for LTD for an “Invisible Condition” 

Applying for LTD for an “invisible condition” is a difficult task, at the best of times, and even more so when you are struggling with the symptoms of your disability.  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 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 LTD claims for “invisible conditions” are 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 and employees with “invisible conditions”.  Based on that experience, we have put together a list of the Three Most Important Tips for people applying for or appealing their LTD claims for “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 worrying as much about losing your income and other health-related benefits and possibly, your job.

The Three Most Important Tips for Applying/Appealing an LTD Claim for “Invisible Conditions”

  • Functionality is key.  Always focus your answers and remind your doctor(s) to focus answers to questions on forms and in telephone calls, on your functioning; that is what you can and can not do, as a result of your symptoms.  This is what the insurance company should be most concerned with when assessing your LTD claim.

Many people believe that a diagnosis is necessary to be successful in an LTD claim.  Often with “invisible conditions” it takes a long-time to get a diagnosis and sometimes, the cause of your symptoms might never be determined.  Approval for LTD does not hinge on a specific diagnosis; it’s all about whether you meet the definition of disability under the plan/policy.

In terms of meeting the definition of disability, it will help your LTD claims representative to know what the obligations of your “own occupation” are and what specifically prevents you from performing those duties.  For example, pain and fatigue may prevent you from standing, walking, sitting, concentrating, communicating, regulating emotions, etc. These are all functions you might need for your job. Therefore, the insurance company needs to understand that your symptoms prevent you from doing both the physical and cognitive demands of your job on a consistent basis or at all.  

  • Treatment is critical. Yes, treatment is extremely important for you, medically, but it is also important for proving your LTD claim.  This holds true for all LTD claims, but especially so for claims for “invisible conditions”.  The nature and extent of your treatment tells the insurance company a lot about the severity of your condition, about your self-reported restrictions and limitations, and about your credibility.  When all you have to rely on is what you are telling your doctors, you need another means to support your claim.  Treatment is one of the best ways to prove to your insurance company that you are not able to do your job and that you are not malingering or exaggerating your condition.

Follow your doctor’s orders; meaning you should be filling prescriptions, attending specialists’ appointments, getting investigations done (such as x-rays, blood tests, MRI’s, medical assessments, etc.), regularly attending therapies that are recommended or prescribed (such as physical therapy, massage, acupuncture, cognitive behavioural therapy, group therapies, etc.), and following your doctors’ recommendations regarding your functional limitations and restrictions (such as, trying to go on walks, not overdoing it, rest as needed, limiting bending, walking, sitting, etc.).  Do not be afraid to advocate for yourself by researching your condition and talking to your doctor about possible referrals or treatments. 

Your insurance company will be more likely to be convinced of the severity of your “invisible condition” and of your self-reported functional restrictions and limitations if there are medical records that document consistent self-reporting that is consistent with what your doctors observe (and which might be observed in the insurance company’s surveillance).  If your family doctor has referred you for countless tests and investigations and to various specialists, that would suggest that your doctor believes you and believes that your condition is so severe as to warrant these investigations and referrals.  Specialist reports will lend additional credibility and validity to your self-reports, as they will also be consistent with what your family doctor and you are reporting.  

It should be clear to the insurance company, from all the testing and appointments and treatments that you are not choosing to be disabled.  Who would opt to spend their days going from doctor to doctor and being poked and prodded and undergoing often painful (emotionally and physically) treatments, if they could work and earn their full salary?

  • Credibility can make or break a claim for “invisible conditions”.  When completing forms or speaking with the insurance company representative who is assessing your claim, remember to be open and honest.  You should also be careful not to be overly optimistic about your return to work or overstate your actual functional abilities.

Remember, it is not unreasonable to assume that the insurance company wants to pay legitimate claims.  Since you are legitimately struggling with your functioning, be clear about what you can not do, but also be clear on what you can do.  You do not need to be bedridden everyday or in a hospital to be eligible for LTD benefits.  You must only satisfy the insurance company that you are not able to do the “essential duties of your own occupation” or after the initial period (usually 24 months), that you are not able to do the duties of “any occupation”.  (Note: the definitions of disability in your policy might be slightly different.)  

If the insurance company finds a medical record or conducts surveillance and finds inconsistencies in what you have reported to them versus what you are doing in the “real world” or what you have reported to your doctors, your credibility comes into question and your claim becomes that much more difficult to prove. 

Overstating your abilities or optimism for your recovery can be relied on by the insurance company to deny or terminate your claim, so exercise caution.  Some of us tend to be “Type A” and find it difficult to admit to ourselves and others that we are not doing well and we are not coping as well as we would like.  While optimism and positivity may be key to recovery or key to living with a disabling condition, your insurance company could easily misconstrue these sentiments and use them as a basis for denying/terminating your claim or initiating rehabilitation and return to work efforts, well before you are ready.  

You May Still Need Outside Help to Prove Your “Invisible Condition”

LTD claims are extremely difficult claims for people to prove.  That is why a vast majority of LTD cases are based on these types of conditions.  

We know that you may have your HR departments, insurance brokers, unions and others to assist you with your disability-related claims.  However, if you ever need an outside perspective, our experience litigating LTD claims for people with “invisible conditions” is extensive.  We are available to provide you with a free confidential consultation at any stage of your disability.  Please do not hesitate to reach out to us.  

Help With Your STD or LTD Application, Appeal and Litigation

We encourage you to contact us 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, during this pandemic only, we are offering free consultations at the sick leave/LTD application stage.  If you are considering sick leave and/or applying for STD or LTD, we encourage you to contact MK Disability Lawyers 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 “invisible conditions” (and all 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, please contact us to schedule a free individual consultation.  We also invite you to visit our website www.mkdisabilitylawyers.com, where you will find a number of resources including an extensive collection of blog articles about LTD, such as our most recent article for teachers “Preparing for the Unknown” and our “Guide to LTD for Union Representatives”, as well as information related to applying LTD during COVID-19.