Disability Insurance

October 17, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

This information is available on another part of my website, but I thought by putting it into the accident benefits blog it might reach more of you. If you have a disability claim please call me.

1.            What is Long-Term Disability insurance?

  A.         Long-Term Disability insurance provides you with payment of a portion of your income when you become disabled. It is important that you review your Long-Term Disability insurance policy so that you are aware of key terms like the definition of disability, the amount that you would be paid and for what period of time. If you wait to review your policy until you are disabled then that will be too late. You need to ensure that your Long-Term Disability insurance policy will provide you and your family with adequate coverage if you become disabled.

2.            Who pays for Long-Term Disability insurance coverage?

  A.         There are a number of ways that Long-Term Disability insurance can be paid for. The employer can pay, the employee may pay or the employee and employer may share the cost. The issue of who pays will have some significant impact on whether the Long-Term Disability insurance payments are taxed. If the employee pays the premiums for the Long-Term Disability Insurance then any payments to the disabled employee under the Long-Term Disability insurance coverage are not taxable. If the employer pays for the premiums associated with the Long-Term Disability insurance plan then the Long-Term Disability insurance payments, when made to the disabled employee, are taxable. You should consult with your human resources department, and financial planner, to determine whether your benefits would be taxable, particularly under a Long-Term Disability insurance plan where contributions to the premium is made by both the employer and employee.

3.            How long will I have to wait to collect Long-Term Disability insurance benefits?

  A.         You will need to review your long term disability insurance policy to determine how long you have to wait to collect benefits. If your employer has a short term disability insurance plan you will usually be entitled to access short term disability insurance benefits under that plan after a short waiting period.

For long-term disability insurance benefits, you need to be off work for several months before you can access long-term disability insurance coverage. The amount of time you have to wait before you access long term disability insurance benefits is called the "elimination" or "qualifying" period. A typical elimination or qualifying period can range from 90 to 180 days. It is important to read your long term disability insurance policy carefully to ascertain your elimination period. If you do not have access to a short term disability plan, you may also qualify for Employment Insurance or Sickness Benefits through the Government of Canada which can provide you with up to 15 weeks of sick benefits.

4.            How disabled do I have to be to qualify for long term disability insurance benefits?

  A.         Generally, you will qualify for long term disability insurance benefits if you are not able to do all, or substantially all, of the elements of your current job. Many long term disability insurance policies indicate that in order to qualify for long term disability insurance benefits, you will have to prove that not only can you not do your own job, but at some point, usually 24 month later, you cannot do any job that you may be qualified to do by reason of your education, training or experience. You should carefully review your long term disability insurance policy so that you understand the terms and conditions that will apply to you if you become disabled.

5.            What type of disability do I have to have to qualify for long term disability insurance?

  A.         Most long-term disability insurance policies cover you no matter what type of injury or illness prevents you from working. Some long-term disability insurance policies, however, exclude certain illnesses, while others exclude injuries or illnesses which would be covered through a Workplace Safety Insurance Board (WSIB) claim, if WSIB is available to you in your workplace.

6.            What does it mean when a long-term disability Insurance policy says I must be totally disabled or completely disabled to qualify for long-term disability insurance benefits?

  A.         Most long-term disability insurance policies provide a definition of total disability or completely disabled. Totally or completely disabled from working means that you are unable to carry out the normal functions of your usual job. It does not mean that you are completely physically unable to do any part of your job, but that your injury or illness is such that common sense requires you to stop working so you can focus on getting better.

7.            My long-term disability insurance company told me that after being unable to work at my own job for two years, they can stop paying me long-term disability insurance benefits because I can work somewhere else. Is this true?

  A.         Generally, most long-term disability Insurance policies state that for the first 24 months that you are entitled to claim long-term disability Insurance benefits, you cannot perform the essential duties of your own occupation. This is called the "Own Occupation Test." After that 24-month period, your eligibility for long-term disability insurance will be based on whether you are unable to perform any occupation for which you are reasonably qualified, or could become qualified for, by reason of education, training or experience. This is often referred to as the any occupation test.

There are many variations on when each of these tests apply. Some long-term disability insurance policies provide for an own occupation test until age 65. Some long-term disability insurance policies have an “any occupation test” that commences from the first day you are entitled to claim for long-term disability insurance. It is important for you to review your long-term disability insurance policy to find out what tests are applicable and when they apply. Some long-term disability insurers will provide you with vocational training to help you to find another job that is more suitable for you if your disability is ongoing and prevents you from returning to your pre-disability occupation.

8.            How much does long-term disability insurance pay?

  A.         Long-term disability insurance benefits can cover approximately 50% to 80% of your pre-disability salary, with a typical policy covering two-thirds of your monthly income. Some long-term disability insurance plans have monthly maximums which may cap the actual amount you receive.

 9.           Can other benefits be deducted from my long-term disability insurance payment?

  A.         Most long-term disability insurance policies are intended to top up those disability benefits available to you elsewhere. As such long-term disability insurance policies usually have provisions which reduce your monthly payment by benefits payable from any Workers' Compensation plan, including Workplace Safety Insurance payments, disability benefits received under any other government program, like Canada Pension Plan - Disability, Ontario Disability Support Program, Employment Insurance - Sickness Benefits, etc., income from the Criminal Injuries Compensation Act wages or remuneration payable from any employer, including any statutory or common law termination and/or severance pay. Under some long-term disability insurance policies, your long-term disability insurance benefits could also be reduced by monies payable to your dependants (i.e. minor children) under the above areas as well.

10.         Can my long-term disability insurance company force me to apply for CPP Disability, or other benefits?

  A.         Many long-term disability insurance policies contain provisions that allow the long-term disability insurance company to make you apply for benefits from another source, like the ones noted in the previous question. If you apply for other benefits, and are denied, they might also have the power to make you appeal the decision. If you are asked to apply for other benefits, or appeal a denial of benefits under another plan, ask the long-term disability insurance company representative to show you which part of the long-term disability insurance policy gives them the authority to force you to do this.

11.         How long does long-term disability insurance last?

  A.         Long-term disability insurance plans can last until you are 65 years old. Some long-term disability insurance plans, however, have a limited time frame, such as 5 or 10 years.

12.         Does long-term disability insurance provide extended medical or dental care as well?

  A.         Long-term disability insurance policies only provide wage replacement. If you are employed and have a benefit plan at work, but must go off on long-term disability insurance, then you might be able to get benefit continuation paid for by your employer while you are on long-term disability insurance. It is important to read your employee handbook for further information on this matter.

13.         If an employer terminates my employment, what does this mean for my long-term disability insurance entitlement?

  A.         With most long-term disability insurance policies, what matters is when you became disabled. So long as you were actively employed at the time you became disabled, your termination should not affect your long-term disability insurance entitlement. However, any termination and/or severance payments, made according to legislation or the common law, may be deducted from your long-term disability insurance entitlement. The matter would become more complicated if you were not actively employed at the time of your termination, such as becoming disabled during a temporary layoff. Additionally, some long-term disability insurance companies can become more critical with your long-term disability insurance claim when they know that you do not have a job to return to.

14.         My doctor supports my claim for long-term disability insurance but the long-term disability insurance company requires me to go see a health care practitioner they have chosen for an assessment. Can the long-term disability insurance company do this?

  A.         Many long-term disability insurance policies have provisions that allow the long-term disability insurance company to have you assessed by a doctor of their choosing in order to establish if you are entitled to benefits. The medical practitioner that the long-term disability insurance company chooses must be reasonably qualified to do such a medical assessment and the medical examination itself must be reasonable. This is often an area of great concern, and if you have any doubts, it is likely in your best interest to seek the advice of a qualified long-term disability insurance lawyer.

15.         I think the long-term disability insurance company has hired someone to follow me and videotape me. Is this normal? Is it legal?

  A.         Long-term disability insurance companies often hire outside companies to follow and to photograph and videotape people who make long-term disability insurance claims. The long-term disability insurance company does this to ensure that you are disabled as you have reported, and to minimize fraudulent claims. That is why being honest and open with your doctors, specialists, the long-term disability insurance company and your lawyer is very important. If you are honest and open, nothing they videotape or photograph of you will hurt your case. In fact, it can be helpful to have that evidence, as it usually shows that you are in fact disabled. Video surveillance is legal. Most investigative companies obey the law, and do not engage in any action that could be considered trespassing or an invasion of your privacy. If at any time however, you feel in danger, you should contact the police.

16.         What should I do if I apply for long-term disability insurance benefits and my long-term disability insurance company refuses to begin to pay me any long-term disability insurance benefits at all?

  A.         You should carefully read the letter from the long-term disability insurance company and find out why you are being denied benefits. It may be that the reason the long-term disability insurance company is not paying you long-term disability insurance benefits is because the long-term disability insurance company is waiting for some paperwork such as medical records. In many cases, the long-term disability insurance company will require documentation from your treating medical doctors before the long-term disability insurance company will make a determination. If that is the case, you should immediately make arrangements to contact your doctor and make sure that the long-term disability insurance company has everything it needs to process your claim.

It may be that the long-term disability insurance company is refusing to pay you due to a misunderstanding or because of some problem with your employer. In that case, you should also contact your employer immediately because the employer is often able to assist you in getting the long-term disability insurance company to fairly process your claim. If you have submitted all proper paperwork and supporting documentation and your family doctor supports your claim, but the long-term disability insurance company will still not consider making payments, you may need to consider speaking to a qualified long-term disability insurance lawyer. The long-term disability insurance lawyer will assess whether you should be receiving long-term disability insurance benefits.

17.         How much time do I have to make a long-term disability insurance claim?

  A.         If you wait too long to take action against a long-term disability insurance company for refusing to pay long-term disability insurance benefits, you may be prevented from asserting a long-term disability insurance claim. You should consult with a qualified long-term disability insurance lawyer as soon as possible to initiate your claim for long-term disability insurance. A long-term disability insurance lawyer will review the limitation periods with you and ensure that your claim for long-term disability insurance is protected.

18.         I just got a letter terminating my long-term disability insurance benefits. What should I do?

  A.         It is important to read the letter very carefully. If your long-term disability insurance benefits are being terminated because a form or information was not provided, contact the long-term disability insurance company immediately, and attempt to get the documentation to the long-term disability insurer as soon as possible. If your long-term disability insurance company maintains its decision to terminate your long-term disability insurance benefits notwithstanding that you and your doctor(s) believe you are still disabled, you should consult with a qualified long-term disability insurance lawyer.

19.         How do I know if I should sue?

  A.         That is a question that is best answered by a qualified long-term disability insurance lawyer. You should seek legal advice as soon as your long-term disability insurance company denies your long-term disability insurance claim. There is strict limitation dates associated with long-term disability insurance claims. It is very important that you take immediate action to obtain legal advice once you are denied from a long-term disability insurance lawyer.

20.         What if I cannot afford a long-term disability insurance lawyer?

  A.         Many long-term disability insurance lawyers agree to work on a contingency fee basis, which means, essentially, that they do not get paid until your claim is resolved.

 21.        Who gets sued in a long-term disability insurance claim?

  A.         Once you have retained a long-term disability insurance lawyer, the long-term disability insurance lawyer will work with you to decide who are the appropriate parties to sue (the defendants). Most often in a long-term disability insurance action, you sue the long-term disability insurance company that is refusing to pay your long-term disability insurance benefits. Sometimes, it may be necessary to sue the broker who sold you the long-term disability insurance policy, or your employer. Your long-term disability insurance lawyer will review this with you.

22.         What do I sue for?

  A.         In all long-term disability insurance actions, you sue for the payment of the long-term disability insurance benefit to which you are entitled. You may also add a claim for "bad faith," if the long-term disability insurance company acted unfairly when they denied your long-term disability insurance claim. Your long-term disability insurance lawyer will also claim for pre- and post-judgment interest on the amounts claimed, together with a contribution from the defendants towards your legal fees.

23.         What is the process for suing the long-term disability insurance company?

  A.         Your long-term disability insurance lawyer should be able to explain this process to you in detail. Generally, your long-term disability insurance lawyer will begin the court process by delivering a Statement of Claim which sets out the allegations you are making against the long-term disability insurance company. The long-term disability insurance company will file a defence and then documents will be exchanged. At some point, you will be asked questions under oath (Examination for Discovery) and you will likely undergo medical assessments, both with your own doctor and the doctor for the long-term disability insurance company. After that, the settlement negotiations and a possible mediation will occur. If the negotiations or the mediation is not successful then your claim for long-term disability insurance will likely go to trial.

24.         Do I have to go to court?

  A.         It is always possible when you begin litigation that your case for long-term disability insurance will end up in the court. However, the vast majority of lawsuits settle at some point in the litigation process.

25.         If the long-term disability insurance company agrees that I am still entitled to long-term disability insurance benefits, what are the different ways that my settlement can be paid to me?

  A.         If the matter goes to court and you are successful, the judge will order that the long-term disability insurance company pay you some or all of the outstanding long-term disability insurance benefits that you should have, plus interest, plus cost and legal expenses. The judge may also order that the long-term disability insurance company continue paying you long-term disability insurance benefits into the future, for as long as you are entitled to receive long-term disability insurance benefits under the long-term disability insurance policy. However, many cases settle on the basis that the long-term disability insurance company and claimant agree on an amount of money that represents a full and final payment to you for past and future long-term disability insurance benefits.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.