Frequently Asked Questions about Long Term Disability Claims & Litigation
Disclaimer: The following information is not intended to be legal advice. These FAQs are available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using these FAQs, you understand that there is no solicitor-client relationship between you and the publisher. The FAQ page should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction. If your employment has been terminated because of your disability and you need legal advice, contact a lawyer specializing in disability law.
Should I stop working if I am not able to perform the duties of my job due to illness or injury?
You should stop working if your doctor recommends that you stop. Similarly, if you do not feel you are able to work or to complete your job duties, you should stop working and see your doctor. Sometimes clients push themselves to work despite their functional restrictions and limitations. Doing so may strain the relationship with the employer and/or may aggravate your medical conditions.
Disclaimer: This chart is meant as a guideline to the LTD claims process but should not be considered legal advice. All insurance policies are different, as are the steps and processes required to apply an obtain benefits under various policies. Please speak to your insurer and your employer to obtain information regarding the application and appeal process under your specific plan or contact a lawyer if your claim has been denied and you remain unable to work.
When should I apply for disability benefits?
You should apply for disability benefits as soon as it becomes apparent you are not able to work or complete the duties of your job due to an illness or injury. Some insurance policies stipulate a deadline within which they require you to submit your claims forms. If you have missed the policy deadline for submitting a claim, you should still submit your claims forms, as soon as possible. In some cases, the insurer may still consider your claim, despite its lateness and it is important that you seek legal advice on this issue.
How do I apply for disability benefits?
If you have coverage under a group disability plan through your employer or an association, you should start by contacting your employer/association to obtain the disability claims forms. If you have an individual or private disability insurance policy, you should contact the insurance company directly to obtain the forms. You may also be able to download the forms from the insurance company website. There are usually two forms that will be required: the Claimant’s Statement (completed by you) and the Attending Physician’s Statement (completed by your doctor). With group insurance, the insurer will also ask your employer to complete a form (Employer’s Statement). With individual/private insurance, you may also be asked to provide details about your business and financial losses due to your disability.
What can I do to increase my chances of being approved for disability benefits?
You should apply promptly and include as much information about your functional limitations and restrictions as possible. This includes providing detailed answers to questions on the Claimant’s Statement and ensuring your doctor provides fulsome responses, as well. You may wish to meet with your doctor prior to him/her completing the Physician’s Statement to ensure he/she includes all relevant information about your disability and to remind him/her to attach all supporting documentation such as test results, specialist consultations reports and any other records that support your claim.
How much is my disability benefit?
Your disability benefit is calculated based on the insurance policy your employer (group) or you (individual/private) purchased. Disability insurance is a form of income replacement and generally does not provide you with 100% of your lost earnings. Generally, your benefit will be based on a percentage of your pre-disability earnings. Many group policies have a benefit amount ranging from 60% to 75% and most often it is 66.7%. You should refer to your benefit booklet or policy or contact your employer to find out what your benefit amount or percentage will be. You may also want to determine whether the calculation is based on your net or gross pre-disability income and whether the benefit is taxable (your employer contributed to your premiums) or non-taxable (you paid the full premium for the benefit).
Do I have to sign the insurance company’s authorizations?
This is entirely up to you. You should be aware that when you complete your portion of the application (Claimant’s Statement) and sign the form, you will be providing the insurance company with a broad authorization to collect and share your personal information. You should read the small print to ensure you are aware of what you are agreeing to. The insurer will use your authorization to gather information from your treating health care providers in assessing your eligibility for disability benefits.
Will my employer terminate my employment if I go off work due to disability?
Your employer is governed by various employment laws in Ontario (and Canada) and these laws will determine how your employer responds to your absence. In most instances, employers do not terminate a person’s employment when he/she is unable to work due to disability (whether disability claim has been approved or not). However, each case is different. For example, if a person has been off work for a significant period and is receiving disability benefits and it is apparent that he/she will not be able to return for the foreseeable future, the employer may determine the employment contract has been frustrated and sever the relationship. Alternatively, if a person has not been approved for disability benefits and has not returned to work and has not provided any information about when or under what conditions he/she may return, the employer may conclude the person has abandoned his/her job. Generally, employers have a duty to accommodate persons with disabilities and will need to do so or justify why they are unable to accommodate the person, before terminating the relationship. If your employer has terminated your employment, you should contact a lawyer.
Why did the insurance company deny my disability benefit claim?
There are many reasons why your disability claim has been denied. The denial letter will provide information regarding the basis upon which it was denied. Often the insurance company will conclude that there is insufficient medical information to support or confirm that you are not able to work and that you are disabled. Sometimes the insurer may take issue with your treatment; finding that you are not receiving appropriate treatment or that your treatment is not indicative of a severe condition. There may also be comments in your medical records that suggest that your condition is improving or that that you have the functional ability to complete the duties of your occupation. If you do not participate in the insurance company’s rehabilitation plan or if you do not do a gradual return to work proposed by the insurer, your claim could also be terminated. There may be other reasons, such as surveillance, which may/may not be cited in the letter, which resulted in the denial. It is best to contact a lawyer immediately upon receiving the denial letter.
The insurance company is asking for more information, what should I do?
If you are able, you should provide the additional information the insurer is requesting. However, if you have provided all the relevant information available, you may wish to suggest to the insurer to contact your treatment providers directly to address any outstanding questions/concerns. If your claim is subsequently denied based on insufficient medical information, you should contact a lawyer to determine next steps (appeal or litigation).
The insurance company is sending me for an assessment, should I be concerned?
The insurance company has a number of “tools” at its disposal to assess claims, sending you to an independent assessment is but one of those tools. Generally, an insurer will send a person for an assessment when it is not clear from the existing documentation whether the person is disabled. Sometimes the person has not seen an appropriate specialist or sometimes there is contradictory information in the records which requires clarification. It is important to understand that the doctor you are seeing has been retained by the insurance company and will not be treating you on an ongoing basis for treatment. You are also entitled to a copy of the doctor’s report (whether it be sent to your doctor or to you directly).
Will the insurance company do surveillance on me?
It is difficult to predict when or if an insurer will conduct surveillance. Generally, if the insurer is not or not yet paying your claim, it will not conduct surveillance. If your claim has been approved, the insurer, as part of its ongoing assessment of your claim may choose to obtain surveillance. Generally, surveillance is undertaken when an insurer has questions regarding your credibility and functionality. The insurer may have discovered some inconsistencies in the records or it may believe that you are more functional than you have presented to the insurer or to you doctors. Surveillance is not limited to claims based on physical conditions. Insurers use surveillance to assess all types of disability claims including mental health-related claims.
Is surveillance by the insurance company legal?
Surveillance is legal so long as the insurance company and investigator are acting within the bounds of privacy laws (PIPEDA). Generally, this means that the surveillance must be justified and there is no other means by which the insurer could obtain the information other than by surveillance. Be assured that the investigator may not enter your home or peer through your windows or look over your fence. The investigator must be able to view you from public property. Practically, this means that he/she may take photos and video of you while you are on your property or in any public space. The investigator may follow you while you run errands or socialize or go to appointments, etc. He/She will also conduct online surveillance to gain additional insight into your activities by extracting information from what you post on social media or other platforms.
What should I do if the insurance company is conducting surveillance on me?
You should go about your normal day-to-day activities. You should ensure that you provide an accurate reporting of your activities to your doctors and to the insurer. You do not want there to be any inconsistencies with respect to your functioning on surveillance and your reported functioning to your doctors and the insurer. You may also call the police if you feel threatened or uncomfortable. Police may speak to the investigator however if the surveillance is being conducted legally, police will not put a stop to it. The investigator may cease surveillance knowing he has been identified by you. If you find surveillance to be causing you stress, you should speak to your doctor about it and also contact the insurer.
What should I do if my disability claim has been denied?
If your disability claim has been denied you should be aware that under Ontario law (known as the Limitations Act) you have two years to commence a lawsuit (subject to any other time frame in the insurance policy). It is therefore important that you consult with a lawyer immediately to determine whether to appeal the denial or to commence a lawsuit. An experienced disability lawyer will be able to tell you which option is best in your case. In either case, you should continue with your treatment and continue to see your doctors. If your employer contacts you, you should advise the employer that you are still disabled and you will be appealing or contacting a lawyer to dispute the denial of your claim. You should not return to work prematurely or without medical clearance. Doing so may aggravate your condition and strain the employment relationship.
Should I appeal the denial or termination of my disability benefits?
If you have had a significant change or worsening in your condition since the claim was denied or if you have new medical records to support your claim, it may be worth appealing the denial. However, as in most cases, claimants have provided all records and remain disabled. In those circumstances, generally, the only option is to commence a lawsuit.
The insurance company is pressuring me to return to work but I am still disabled, what should I do?
If your employer contacts you, you should advise that you are still disabled and you will be appealing or contacting a lawyer to dispute the denial of your claim. You should not return to work prematurely or without medical clearance. Doing so may aggravate your condition and strain the employment relationship.
I am receiving disability benefits but I would like to return to work, what should I do?
If your condition has improved to the extent that you are able to attempt a return to work, you should discuss this with your doctor first. Your doctor may recommend accommodations and a gradual return starting with reduced hours. You may then wish to contact the insurer. Often the insurer will work with you and your employer and your doctor to transition you back to work. You may also want to reach out directly to your employer. If you are unsuccessful and go off work again due to the same or related disability within a set period of time (usually six months), your policy may have a Recurrent Disability provision which would allow for your benefits to resume without having to satisfy the waiting period, again. It is important to contact a lawyer to discuss this issue so that you do not compromise your rights unintentionally.
What benefits or sources of income are available to me if I become disabled?
You may have access to a number of private and public income benefits, depending on a number of factors, including the severity of your condition, the cause of your illness or injury, your financial circumstances and the plans/policies under which you have coverage. The following is a list of sources of income, potentially available to you should you be disabled:
- Short-Term Disability or Weekly Indemnity Benefits through a group insurance plan;
- Long-Term Disability Benefits through a group plan or private/individual policy;
- Disability Creditor Insurance (under your mortgage or credit cards);
- Critical Illness Insurance;
- Accidental (Death) or Dismemberment Insurance;
- Workplace Safety Insurance Benefits (WSIB);
- Employment Insurance Sickness Benefits (EI Sick);
- Ontario Disability Support Plan (ODSP);
- Ontario Works (OW);
- Income Replacement Benefits (IRB’s);
- Tort Damages (personal injury);
- Accident Benefits (motor vehicle);
- Extended Health Care benefits;
- Trillium (extended health benefits);
- Canada Pension Plan Disability (CPP-D); and
- Disability Pension (employer).
My disability claim has been denied, how do I support myself financially?
You should attend a Service Ontario office or go online (link) to apply for other income benefits to which you might be entitled. You should contact a lawyer immediately, to ensure litigation commences promptly and your claim is resolved as soon as possible. A disability lawyer should also be able to advise you about other potential claims you may have such as personal injury, motor vehicle, employment, human rights, etc.
Do I still have extended health benefits while I am off work due to disability?
Your employer may or may not choose to continue your extended health benefits for you while you are disabled. They may pay the premiums or ask you to pay them in order to maintain the coverage. If you cannot afford to pay the premiums your coverage will stop and may only resume once you return to active work. You may also be entitled to extended health coverage under provincially funded plans, depending on your financial need.
When should I call a lawyer?
You should call a lawyer when your disability is denied and you are still not medically able to return to work. If you sense that your claim will be denied based on your communications with the insurer, you may also wish to make an initial call with a lawyer, in anticipation of the denial. The sooner a lawyer is involved, the sooner your dispute with the insurer will likely be resolved in litigation.
How does the definition of disability change after two years and why might my claim be denied at that time?
Under most group disability policies, the definition of “total disability” changes after two years. For the first two years of disability, you must be disabled from performing the essential duties of your own occupation (this is broader than your own job). After that, you must be disabled from performing the duties of any occupation for which you are suited by way of your education, training and work experience. The exact wording and requirements vary between policies, as such you should refer to your policy to determine what definition(s) of disability apply to you. Often claims are denied at the two-year mark when it becomes more difficult for people to prove that they are totally disabled from any occupation. If your claim is denied at this point, you should contact a disability lawyer immediately.
The insurance company has required me to participate in a rehabilitation program but it is making my condition worse, what should I do?
Under most disability policies, the insurance company can require you to comply with their efforts to rehabilitate and return you to work. A rehabilitation plan may include therapies (such as physiotherapy or psychotherapy), job search assistance or most often, implementing a gradual return to work with or without accommodations. If you do not comply with the rehabilitation plan, the insurer may terminate your benefits. It is critical that your treating doctors and specialists be consulted throughout the plan. Should you or your doctors feel that the insurer’s efforts are aggravating your condition and that you must cease participation, it is imperative that a detailed note or report be provided by your doctor to your insurer. Should the insurer then terminate your benefits on the basis of your non-compliance with rehab, you should contact a disability lawyer.
The insurance company wants me to do a gradual return to work, but don’t feel ready to return to work, what should I do?
If the insurer is pressuring you to return to work and threatening to terminate your benefits if you do not cooperate, you should consult a disability lawyer, immediately. Returning to work before you are medically able could aggravate your medical condition and/or strain your relationship with your employer.
Do I have to apply for CPP Disability Benefits?
At some point after being approved for disability benefits (usually around the two-year mark), the insurer will require you to apply for CPP Disability (CPP-D) benefits. CPP-D benefits are an “offset” under most disability policies. This means that any amount paid to you by CPP-D will reduce your disability insurance benefit. The definition of disability under CPP-D is more difficult to satisfy than those under your disability insurance policy. If you do satisfy the definition and are approved, it may be more difficult for the insurer to terminate your benefits. If you do not apply for CPP-D, some insurance policies allow the insurer to reduce your disability benefit, as if you had applied and been approved. It is therefore best to apply for CPP-D.
My doctor does not support my disability claim, what should I do?
It is important that your treating doctors and specialists support your claim for disability benefits if you are not able to work. If you feel that your doctor is simply not understanding the nature of your restrictions and limitations, you may be able to rely on your other doctors and specialists to complete forms and communicate with the insurer. Alternatively, you may need to find a new doctor who will be more supportive. If, however, your doctor has refused to make referrals to specialists or has refused to complete insurance forms or communicate with the insurer, you may want to consider contacting the Ontario College of Physicians and Surgeons to determine what your doctor’s obligations are in that respect.
I do not know what is causing my symptoms and I do not have a diagnosis, will that be a problem for my disability claim?
Although a diagnosis is not a requirement under most disability policies, it is something that the insurer will look to in order to gain a better understanding of the severity of your symptoms and your functional limitations and restrictions. If you have an undiagnosed illness that is preventing you from working, it is important that you and your doctors continue to investigate the cause of your condition and make the best efforts to treat the symptoms. The insurer should be focused on whether you are functionally able to work and not a specific diagnosis. If your benefits are denied because your illness has not been diagnosed, you should contact a disability lawyer.
I am having problems getting in to see doctors and specialists and get the necessary treatment or I can’t afford the necessary treatment, will that be a problem for my disability claim?
Your disability insurance policy requires you to be receiving appropriate treatment in order to be eligible for ongoing benefits. The insurer should be aware that many regions are under-serviced with respect to specialists and treatment providers. The treatment you require may simply be unavailable to you. Similarly, if your extended health care benefits have been exhausted or terminated by your employer, you might not be in a position to afford ongoing out-of-pocket treatment expenses. In both these instances, the insurer should not be terminating your benefits due to a lack of appropriate treatment. If the insurer does deny benefits on this basis, you should contact a disability lawyer.
Can my insurance company deny my claim due to a pre-existing condition?
Most disability policies have a pre-existing condition exclusion. While the wording of the exclusion varies between policies, generally, a disability claim will be denied if you become disabled within 12 months of becoming insured under the policy from a condition or related condition for which you sought treatment or consulted a doctor within the three month period prior to your coverage taking effect. This is an important exclusion to remember if you feel you might need to stop working due to disability and you are a new employee, not having disability coverage in place for a full year.
Disclaimer: The preceding information is not intended to be legal advice. These FAQs are available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using these FAQs, you understand that there is no solicitor-client relationship between you and the publisher. The FAQ page should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction. If your employment has been terminated because of your disability and you need legal advice, contact a lawyer specializing in disability law