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

The COVID-19 pandemic has taught us just how critical our schools are to the social and economic functioning of our society, our communities and our families.  We can no longer take for granted our reliance on schools to educate and care for our children; to ensure their future social and academic successes; and also, to allow us and others the time and flexibility to work and contribute to our own family incomes and, by extension to contribute to the economy, as a whole.  

Our Commitment to All School Professionals and Staff During this Pandemic

It is due to this critical role that schools play in all of our lives, whether we are parents, employers and/or business owners, that we should all be concerned right now about the health and well-being of our schools’ teachers, administrators and staff.  As a disability law firm, committed to serving school communities, we have dedicated much of our time and resources during this pandemic to supporting those in schools who are struggling with their health and considering whether to stop working for a period of time to care for themselves, recover from their conditions and ultimately, return to their jobs in the future.

Since the start of the pandemic, we have been inundated with phone and email inquiries from educators, administrators and school staff who are struggling to function in their jobs.  They are pushing themselves far beyond what they can manage and are wondering whether to apply for sick leave and long-term disability benefits. 

For some, the ongoing demands from continually having to adjust and adapt their role and duties to changes resulting from the evolving pandemic have triggered extreme stress and anxiety, causing serious issues with their cognitive and emotional functioning.  For others, the pandemic has made it impossible for them to do work due to their existing limitations and restrictions which were being well-managed and accommodated in the pre-pandemic world but which are impossible to accommodate, in the current pandemic environment.  For most, the multitude of stressors caused by the pandemic has taken a toll and caused or at the very least, contributed to their inability to work. 

Most Common Questions and Concerns about Stopping Work

The most common questions and concerns we have heard from teachers, principals, educational assistants, administrative, support staff and others working in schools, centre on what they should do if they are functionally unable to work due to an illness or injury.  Stemming from that very broad question are concerns about when to stop working; what they need from their doctors to prove they are not able to work; whether they would qualify for sick leave/STD or LTD benefits; how stopping work might jeopardize their jobs and their financial security; how continuing to work could seriously impact their already tenuous health condition; whether they should try to ask for accommodations and try to return to work; and, what happens if their disability claim is denied.  

These are all very real and valid concerns that I and my fellow law partners have spent many hours speaking about in our popular LTD Webinars and also, in our one-on-one conversations with those in a variety of school occupations, who have contacted us in the past year. 

In this article, we will aim to provide teachers, administrators and school staff with the information, insights and suggestions they need to help them apply for Long-Term Disability benefits.  Whether you are a teacher, administrator or staff member, we hope that the tips we provide here help you in obtaining the disability benefits you need and to which you are entitled while you are not able to work.  

Please note that during the COVID-19 pandemic we are offering all Ontario teachers, administrators and school staff, free, confidential consultations including, free assistance with their LTD applications and appeals

When to Stop Working Due to Illness or Injury

The answer to the question of when to stop working is simple. You should stop when and if you are not functionally able to perform the essential duties of your job due to an illness (physical, psychological or a combination of both).  This means that if you are struggling with the main tasks of your job due to symptoms of an illness or injury, then you should consider whether it makes sense for you to speak to your doctor about writing you a “sick note” to support your sick leave of absence. 

If your illness or injury has been gradually worsening over time, as you persevere at work, you may have already sought treatment from your family doctor and other specialists or treatment providers.  You might also have been prescribed medications and other therapies. If that’s the case, your doctor will have been monitoring your condition and will be able to support your sick leave claim based on a deterioration in your condition and also, your response to treatment.  

However, if you have not seen a doctor for the symptoms or conditions that are affecting your functioning, then it is important that you do so as soon as possible, either before you stop working or as soon as possible, thereafter.  You will need to be very clear with your doctor about why it is that you need to stop working.  You should describe all your symptoms and how they affect your ability to function at work and in your daily activities.   Your doctor may support your sick leave claim, while you pursue various treatment recommendations or go to specialist appointments or undergo testing. 

Another reason or time to stop work is if work is or becomes a risk factor for your health or medical condition; meaning that work would not be good for your health and could in fact cause you harm.  For example, some people who have undergone heart surgery or have high blood pressure are often advised by their doctors to avoid any degree of stress.  In those cases, the person may be functionally able to work, but work is “contraindicated”. 

Sick Leave & Short-Term Disability

Depending on your benefit plan/policy, you may be eligible for sick leave benefits (also known as short-term disability benefits).  To find out what if any income benefit is available to you during your initial period of illness/disability, you should look to your benefit booklet.  The booklet (hardcopy or online) will set out what benefits you are entitled to should you become disabled from work. It will also tell you the process for applying.  You can also find this information in your Collective Bargaining Agreement or you can ask your union or association for details about your sick leave policy and benefits and the process for applying. 

If your doctor is not willing to support your sick leave but you feel that you are not able to work, please contact us for a free consultation as your sick leave claim may be more complicated than most and we can provide you with some guidance to help you through the process. 

The Basics of LTD Plans and Policies

Depending on your occupation, you will have LTD coverage under a specific plan or policy.  For example, Ontario teachers have coverage under the OTIP (Ontario Teachers Insurance Plan).  administrators and school staff have coverage under different policies.  Although the LTD policies may differ depending on your specific occupation, there are similarities in terms of how LTD claims are assessed.

It is important to remember that every LTD plan or policy is different and it is important that you review the specific policy or benefit booklet that applies to you. You can obtain a copy of your benefit booklet from the policyholder (this is usually, your school board or association) or from your union if you are unionized.  The payer or insurer of the LTD benefit  (such as OTIP) can also provide you with the information and forms you need to apply.  

Below are some common facts about LTD plans/policies to assist you in understanding more about LTD benefits and what information you will need to submit your claim. 

  • The LTD policy you have is provided to you by your employer.  You are a covered member under the group by virtue of your employment.  If you are a new employee, you will need to make sure that you have worked long enough to qualify for LTD coverage.   
  • Your LTD claim will be assessed either by the insurer or an administrator.  This means that in some circumstances, the payor of the benefit is the one who is assessing your claim, while in other cases, an administrator assesses your claim but a trust or insurance company is responsible for paying the benefit.  All you need to know at the application stage is where to send your claims forms (which will be the entity that decides whether your claim is approved or denied).  If your claim is later denied, knowing who actually pays the benefit, will be important if litigation becomes necessary.
  • Your LTD benefit amount is based on a percentage of your pre-disability earnings.  For example, for teachers, most OTIP LTD plans provide for a monthly LTD benefit equal to 50% of your pre-disability monthly earnings.  This percentage will differ depending on your LTD plan/policy.  
  • Your benefits may be taxable or non-taxable, depending on whether you paid the entire premium (non-taxable) or whether your employer all or a portion of your premium (taxable).
  • You must be “totally disabled” to qualify for the monthly LTD benefit.  Your policy or benefit booklet will define the term “totally disabled”.  Generally, it means that you are not able to work at your “own occupation” (for the first 24 months of benefits and “any occupation” thereafter) due to an injury or illness.  Your illness or injury can be due to either or both psychological and physical conditions.  For teachers, the definition of disability is even more specific; requiring the teacher to be “unable to perform the significant duties pertaining to their Specific Assignment”.
  • You must be continuously totally disabled for the period of time you last worked and leading up to the start of your LTD benefit period.  The length of this period may vary depending on your occupation and the terms of your plan/policy.  However, it is typically a set period during which you are totally disabled and may be entitled to sick leave benefits or take paid sick days and/or be receiving Employment Insurance Sickness Benefits from the Ontario government. 
  • You must submit two claims forms to apply for LTD benefits.  One form is completed by you and is called a Plan Member or Employee Statement.  The other form is a Physician’s Statement which is completed by your doctor.  Your employer/school board might also be required to submit a form, however, you will not need to ask them to do this, as the insurer/administrator will make that request directly to them.
  • There is a deadline for submitting your claim, based on the date from which you first became eligible for the LTD benefit.  You should try to have your completed claims forms submitted in advance of the deadline, to allow time for your claim to be assessed and to avoid any delay in your income.  There is also a deadline for appealing and litigating claims that are denied.  Contact us immediately if your claim or appeal is denied. 

Tips for Applying for LTD Benefits for Teachers, School Administrators and Staff

Those who contact us when they are in the early stages of their disability, always ask us what they should be doing to ensure that their LTD claim is approved.  In an effort to address this most common question, we have listed below seven practical tips that we hope will maximize the likelihood of your LTD claim being approved. 

  1. You should submit your application as soon as you realize that you will not be able to return to work at the end of the sick leave period.   You can request the claims forms from your employer/insurer/union.
  2. Check your Booklet or call HR/Insurer/Union to find out what the deadline is for applying for LTD.  If you are already past the end of the sick leave period, by weeks or even months, you should submit your application immediately.  Even if your application is late (or very late), the insurer may still consider it and if they will not, you should contact us, immediately.
  3. Make an appointment with your doctor (the doctor overseeing your care for your disabling conditions–usually, this is the family doctor) to discuss your LTD claim and the form they will need to complete (Attending Physician’s Statement).   Ask them to provide as much detail as possible and list all possible disabling conditions/symptoms.  Make sure they understand how your condition prevents you from working at your specific job/occupation.   Remind your doctor to attach any test results and specialist consultation reports to the claim form.  Be sure to keep a copy of the form for your records.
  4. When completing your claim form (Claimant’s/Member’s/Employee’s Statement), be honest and complete in your answers as they should be consistent with what your doctor says on his/her form.  Inconsistencies may cause your claim to be denied.  Please feel free to contact us if you would like for us to review your claims forms before you submit them.
  5. The insurance company is most interested in understanding how your medical condition impairs your functioning.  They need information that confirms that your symptoms are so severe that they prevent you from working at your occupation or for a teacher, your “specific assignment”.
  6. When you communicate with the insurer, you may feel as though the insurer does not believe you (this is how they approach all claims, not just yours).  It is important that you not take this approach personally, which may cause you added stress and anxiety.  If you feel that your case manager is not being fair in their assessment of your claim, contact us, immediately and we will help you navigate your claim.
  7. Try to be consistent in terms of what you communicate to the insurer (in forms, emails and telephone communications) and to your doctors at your appointments.  It can be problematic if the level of functioning you report to your doctor is different from what you report to the insurer.  They may question your credibility and deny your claim.

Help With Your LTD Application, Appeal and Litigation

We encourage you to contact us if you would like to discuss making an LTD claim or if you would like help with your application for LTD benefits or if your LTD claim has been denied or terminated.

As an added support, during this pandemic only, we are offering teachers, administrators and school staff free consultations at the sick leave/LTD application stage and with their appeals.  

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 unions, associations and OTIP, we have the unique, outside perspective that comes from reviewing and litigating countless LTD claims that have been approved, denied or terminated and we can use that insight and experience to help you avoid adverse outcomes.  One of our partners, Courtney Mulqueen, also has the added insight that only comes from having defended LTD claims for Manulife, OTIP, and Canada Life.  

If you have specific questions about LTD, please contact MK Disability Lawyers LLP 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”, “Battling Back to School Blues: Making an OTIP LTD Claim for a Mental Health Condition”, “Angela’s Story: A Teacher’s Journey Through Illness to Empowerment”, and our “Guide to LTD for Union Representatives”, as well as information related to applying LTD during COVID-19.