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

So that body check at the pick-up hockey game on Sunday evening has left you with headaches, ringing in your ears and blurry vision. It’s Monday morning and you have a big project to complete at work. You attend work but find that looking at a computer screen significantly aggravates your headaches and causes visual disturbance and nausea.

As the week progresses, you find your symptoms worsening. Your neck and shoulders are starting to hurt and you are feeling nauseous and dizzy throughout the day. You are experiencing memory issues, attention deficits and your ability to focus feels impaired.

Your doctors are advising you that you may have sustained a concussion which is essentially a mild traumatic brain injury caused by a blow to the head, neck or upper body and that you are probably suffering from post-concussion syndrome. You are concerned about your job performance and do not want to let your employer down, but you are struggling to function at work.

What are my rights with respect to my employer if I am having difficulty working?

Employers have a duty to accommodate under Ontario’s Human Rights Code to the point of ‘undue hardship.’ This means that you could request that your employer provide you with accommodations that might include more rest breaks when you have to work on a computer or the use of a specialized screen. You could also potentially request a part-time schedule to reduce the amount of exposure to a computer screen or to manage your ongoing symptoms.

You have a right not to be discriminated against based on disability, and that involves an employer’s requirement to accommodate you even if it is difficult for them to do so.

Although your employer has an obligation to accommodate you, they are not legally required to compensate you for time not worked or work that you have not done.

The question then becomes whether it is advisable to continue working with accommodations or whether you should consider submitting an application for disability benefits from your group insurer.

If I am accommodated, can it impact a potential disability claim?

If you are working a part-time schedule for a prolonged period and then find that you are completely unable to continue in your job, you may find that when you do submit a claim for disability benefits, your disability benefit will be calculated based on your reduced part-time income.

In other words, if your employer has adjusted your schedule so that you are only working half your usual time and paying you a reduced salary and you then apply for disability, your insurer will calculate your benefits based on that reduced salary.

When should I request accommodations in the workplace and when should I be applying for disability benefits?

The answer is not always clear cut and will involve you working closely with your doctor in order to determine the right timing to ensure that you do not compromise your disability benefit entitlements.

If your doctor(s) agrees that you are able to return to your job, you may need your employer to make some accommodations in order for you to be successful in your efforts. If you do require any accommodations, it is important that those be discussed with your employer and supported by your doctor(s), in writing.

What does my doctor need to do to support my disability claim?

In discussing your ability to return to your job, it is important for your doctor(s) to consider all of your functional limitations and restrictions. This means that your doctor(s) should consider not only whether you are able to perform the physical demands of your job but also whether you are able to perform the cognitive demands such as memory, concentration, focus, and the ability to communicate, regulate emotions and manage stress.

Depending on the extent and nature of accommodations recommended by your doctor(s), you may instead choose to forego a return to work attempt to apply for long-term disability benefits instead.

What other issues could I face if I continue working in an accommodated position?

In addition to risking a reduced long-term disability benefit payments for the entire period of your claim, returning to work before you are ready could also make it much more difficult for you to stay “on claim” and to continue to satisfy the insurance company that you are disabled and entitled to benefits.

Most group disability insurance policies have a “change of definition” provision, which makes it more difficult to qualify for benefits beyond a certain date (usually 24 months). Simply, the definition of disability changes such that you must prove not only that you are disabled from your “own occupation” but that you are also disabled from “any occupation”.

At this point, it will be much more difficult for you to prove that you are not able to earn a commensurate income (an income which is a fraction of the already reduced income you were earning when you stopped working) doing any type of job you are reasonably qualified to do.

Remember, you can always review your options with a lawyer in order to make sure you make the right decision while you focus on getting well. The lawyers at MK Disability Lawyers have decades of specialized experience dealing with disability cases. We would be happy to provide you with a free consultation, during which we can discuss these options and answer your many questions. Please contact us online or by calling 844-697-4600. We are here to help.