Long-Term Disability Benefits: What You're Really Entitled to When Sick or Injured

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2 Legal Disclaimer This book is designed to provide information about the subject matter covered. It is provided with the understanding that the author and the publisher are not engaged in rendering legal, accounting or other professional services. If legal advice or other professional assistance is required, the services of a competent professional should be sought. Every effort has been made to make this book as complete and as accurate as possible. However, there may be mistakes both typographically and in content. Therefore, the text should be used only as a general guide and not as the ultimate source of the subject matter covered. The author and the publisher shall have neither liability nor responsibility to any person or entity with respect to any loss or damage caused or alleged to be caused directly or indirectly by the information covered in this book. This book is the exclusive property of the publisher and/or the author and is protected by copyright and other intellectual property laws. You may not modify, transmit, publish, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display or in any way exploit, any of the content of this book, in whole or in part. Preszler Law Firm :: 1 (800) :: Page 2

3 Table of Contents Legal Disclaimer... 2 Table of Contents... 3 Introduction... 4 Chapter 1: Defining a Long-Term Disability... 5 Types of Disabilities... 5 Elements of a Disability... 5 Chapter 2: Types of Disabling Conditions or Events Eligible for Long-Term Disability Benefits... 7 Disabling Conditions from Accidents... 7 Disability Due to Illness... 8 Chapter 3: Determining Your Eligibility for Long-Term Disability Benefits... 9 Diagnosing and Verifying a Long-Term Disability... 9 Work History and Ability Factor Heavily Into Your Eligibility... Error! Bookmark not defined. Chapter 4: Sources of Long-Term Disability Benefits Three Types of Benefit Providers Chapter 5: Filing a Long-Term Disability Benefits Claim Common Issues When Applying for Long-Term Disability Benefits Chapter 6: Preventing Denial of Your Long-Term Disability Benefits Claim Avoidable Reasons for Claim Rejection Responding to the Insurance Company Promptly Keeps Your Claim Alive Chapter 7: Your Rights to Long-Term Disability Benefits Payment of Your Benefits Chapter 8: Identifying Unfair Treatment By The Insurance Company What to Do When You Suspect Insurance Company Misconduct Chapter 9: How a Disability Lawyer Can Help Not All Lawyers Are Created Equal Preszler Law Firm :: 1 (800) :: Page 3

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5 Introduction A car accident resulting in a spinal cord injury leaves your loved one paralyzed from the waist down. Your husband has a slip and fall and develops chronic back pain and is no longer able to work. You are diagnosed with stage two pancreatic cancer and have to undergo chemotherapy. The treatment results in extreme fatigue and makes it impossible for you to return to work. These are just a few of the scenarios that could require you to seek longterm disability benefits for yourself or a family member. When you are unable to work and support yourself and your family for a prolonged or permanent period of time, disability benefits may be available to you from several sources. Unfortunately, even if you or your loved one has a clearly documented and obvious condition such as an amputation, insurance companies and government programs may not always readily accept your claim and give you the benefits to which you are entitled. It is even more difficult when you have what are referred to as invisible impairments like chronic pain or depression. This book was written to be your guide throughout the process. Whether you are seeking disability benefits from your private insurance policy, employer or the Canadian Pension Plan (CPP), it is important to know your rights. The Preszler Law Firm has been helping Ontario residents like you secure their disability benefits for over 50 years. We have condensed our extensive experience and knowledge of the disability benefits process into this guide so you can better understand how to pursue a claim. We also invite you to contact our office to schedule a free consultation with a lawyer to discuss your specific situation. No two disability cases are alike, and we want you to have the individualized attention your family deserves. The insurance companies may see you as another case number, but at Preszler Law Firm, we see you as a family deserving of your complete benefits. Preszler Law Firm :: 1 (800) :: Page 5

6 Chapter 1: Defining a Long-Term Disability Did you know? It is reported that as of December 2012, more than 326,000 Canadians of working age were collecting disability benefits from the CPP. The first step in determining if you are eligible to pursue disability benefits is to establish that you have a health condition that impairs you from working or maintaining your normal life. Health conditions may result from an injury or develop over time, such as a disease or illness. Both mental and physical conditions may qualify as disabling conditions. Types of Disabilities There are several ways a person may become disabled throughout his or her lifetime. In many cases, a person lives a healthy life until stricken with a disabling illness, condition or disease. In other cases, a serious accident may result in injuries that cause long-term or permanent disabilities. Children may be born disabled due to genetic factors, birth defects, or birth injuries. No matter what the reason for disability, if it is severe enough to impair your ability to work and will last for a prolonged period of time or become permanent, it may qualify you to seek disability benefits. Elements of a Disability The first source of evidence of your disability is your medical team. Your primary doctor is typically the first medical professional to assess your condition and acknowledge your disability. In many cases, specialists such as oncologists, orthopedists, and neurologists may provide more detailed assessments. The other major factor that defines a disability is the impact it has on your life. Ability to work is especially important in defining a disability. A disability must impact your ability to function in your current job and also impair you from performing any other work for which you are qualified. A health condition that prevents you from basic self care may also be a sign of long-term disability. An illness such as Parkinson's disease can lead to difficulty dressing and feeding oneself, as well as driving and participating in social activities. Finally, there is the emotional side of disability to consider. An inability to lead a healthy life due to a disabling condition can lead to mental disorders such as depression or mood swings. Sometimes a disabling condition will cause a person to be unwilling to participate in activities Preszler Law Firm :: 1 (800) :: Page 6

7 in which they used to participate. This is important information to disclose to medical professionals evaluating your disability, as it helps establish the full extent of how your health conditions impair your livelihood, a necessary part of evidence if you are seeking long-term disability benefits. Preszler Law Firm :: 1 (800) :: Page 7

8 Chapter 2: Types of Disabling Conditions or Events Eligible for Long-Term Disability Benefits When you suffer a serious medical condition - whether physical or mental - you must be able to define it as both disabling and long-term. Some injuries or illnesses may meet one definition but not the other. In such cases, some conditions may be compensated through other types of benefits such as short-term disability. For the purposes of long-term disability, the condition must be both considerably disabling and have a lasting or permanent duration. Disabling Conditions from Accidents An accident such as an automobile crash or a slip and fall can cause a sudden injury that result in a long lasting or permanent disability. Accidents typically cause physical trauma that impair one or several body systems to the point where they impact your ability to work and address normal life needs. Spinal cord injury can cause disabilities such as paraplegia or quadriplegia which can render a person unable to move or feel any sensation below the site of the injury. Some people retain partial mobility or sensation, while others may have a complete loss of function below the area of injury. Aside from an inability to move, spinal injuries can also disrupt bowel control as well as respiration depending on the severity and location of the injury. Disc herniation and degenerative disc disease should not be overlooked are often the cause of severe disability. Traumatic Brain Injury (TBI) can also cause physical impairments but may also result in cognitive disabilities. People who suffer a major TBI may have difficulty with memory, speech, concentration, and emotional control. Physical disabilities may include vision problems, persistent headaches, seizures, repeated vomiting or nausea, weakness in extremities, and difficulty sleeping or waking. Loss of limb or damage causing blindness or hearing loss may also result from a traumatic accident. Injuries to body parts that are too severe may result in a forced amputation, while other accidents may result in a traumatic amputation. Eye injuries and damage to the face can cause blindness, while exposure to extremely loud noises or head trauma may result in deafness. Preszler Law Firm :: 1 (800) :: Page 8

9 Psychological injury in the form of depression or anxiety is equally disabling in comparison to a physical injury and can result in a permanent inability to work. Disability Due to Illness A disabling illness is one that causes severe impairments that prevent you from working or fulfilling life's needs. An illness deemed terminal is one of the most common types of illnesses to qualify as a disability. Did you know? A chronic or terminal illness does not have to be connected to your employment to be considered for long-term disability benefits. Many types of cancers, especially later stage or highly aggressive cancers, are typically considered long-term disability illnesses. While the cancer itself may not cause a person to be unable to work, treatments such as chemotherapy and certain cancer surgeries may impair patients from continuing at their job. Most cancer treatments last several months, making them a qualifying illness for many disability insurance policies. Progressive diseases such as Parkinson's disease or Alzheimer's disease are also often considered disabling conditions expected to last long-term. When these diseases impair your ability to safely and effectively perform your job, it is time to consider long-term disability benefits. Severe cases of mental illness such as personality disorders, Post- Traumatic Stress Disorder (PTSD), and chronic depression may also be disabling if they are severe enough to impair work ability and expected to last beyond the required periods set in your insurance policy. Preszler Law Firm :: 1 (800) :: Page 9

10 Chapter 3: Determining Your Eligibility for Long- Term Disability Benefits To be eligible for long-term disability benefits, there are three general requirements: the disability must be diagnosed and verified by a medical professional; the disability must prevent you from working and taking part in your regular living activities; and the disability must be present or expected to last for an extended period of time or result in death. Depending on the type of disability benefits you are seeking, there may be additional eligibility criteria. Eligibility for long-term disability benefits under employer-based or private insurance coverage will depend on the policy terms and regulations of each individual insurer. Diagnosing and Verifying a Long-Term Disability Your medical history and current condition are the main focus of a longterm disability claim. To collect disability benefits, your condition must be "long-term" the definition of which will depend on the source of benefits you seek. Generally, a condition must last several months or be expected to last several months or result in death. The source of the diagnosis must be a medical professional and depending on your disability, may require a diagnosis from a specialist such as an oncologist or neurologist. In some disability claims, such as those with the CPP, the benefit provider may request that the diagnosis and evaluation come from its choice of medical professional. Your health history may also play a role in determining if you are eligible for long-term disability benefits. In proving that a condition is long-term, you may benefit from having a history of treatment for the condition if it was not a sudden disability such as an accident injury. Preszler Law Firm :: 1 (800) :: Page 10

11 Chapter 4: Sources of Long-Term Disability Benefits There are several sources to consider when seeking benefits for a longterm disability. The two most commonly contested sources of disability benefits are through private disability insurance companies and group disability insurance plans. Did you know? More than 4.6 million Canadians carry group short-term disability insurance, while 10 million carry long-term disability insurance, according to the Canadian Life and Health Insurance Association Inc. If you have private disability insurance coverage through a company such as Sun Life you pay a premium to secure your right to coverage should you become disabled and unable to work for an extended period of time. Claiming these benefits is not always an easy task, as many insurance providers will try to deny your claim to avoid paying the amounts of coverage you have been expecting for the years you have paid for your plan. Group insurance coverage is often provided by an employer to protect employees who become unable to work for an extended period of time due to a disabling condition. You should expect the same ease of access to coverage with this type of insurance just as you would in a private plan, even though your employer may be paying the premiums. The Canadian Pension Plan (CPP) is a type of disability benefit available to all Canadian citizens who meet the eligibility requirements for the program. Three Types of Benefit Providers Personal disability insurance is typically available as part of a life insurance policy, but can also be purchased separately. These plans work just as any other insurance plan - you pay a premium and should you become disabled, your insurance policy will pay out the policy limits. There are several types of personal disability insurance, including presumptive disability benefits, catastrophic disability benefits, and critical illness insurance. Some of these benefits may apply even if you are still able to work with your disability, while others may only apply if you are completely unable to continue working. In addition to insurance directly related to disability, there may also be specific types of coverage under your other insurance policies that provide disability benefits. Your auto insurance policy or travel Preszler Law Firm :: 1 (800) :: Page 11

12 insurance may have riders that provide benefits in the event you suffer an applicable injury or illness that relates to the particular coverage. Employer disability benefits are types of group plans provided by an employer to its employees. The benefits from these plans cover a range of impairments such as temporary sick leave, short-term disability, and long-term disability. Once a claim is made for disability benefits you may be considered shortterm disabled for the first few months. If your condition persists past the initial short-term period your case may be reevaluated for long-term disability and extension of benefits. These benefits are typically provided up to two years if you are unable to perform your current occupation, after which you may be required to evaluate your disability and determine if it prevents you from performing any occupation. Your employer may pay the premium for this coverage, or include it as a deduction from your wages. Government disability benefits are available to most Canadians through the Canadian Pension Plan's (CPP) disability benefits program. Specific to Ontario residents is the Ontario Disability Support Program (ODSP) through the Ministry of Community and Social Services. For the CPP benefits you must be unable to work due to a "severe and prolonged" disability. The CPP defines "severe" as "having a mental or physical disability that regularly stops you from doing any type of substantially gainful work" and "prolonged as " long-term and of indefinite duration or is likely to result in death." The ODSP provides income support benefits available to persons with a substantial mental or physical disability that is continuous or recurrent, is expected to last a year or more, has been verified by an approved health professional, and impairs their ability to work, care for themselves, or participate in the community. The amount of income support will depend on the size of your family and your income, assets and costs of housing. If you are able to work, employment support through ODSP can help you prepare to work and even start your own business. Preszler Law Firm :: 1 (800) :: Page 12

13 Chapter 5: Filing a Long-Term Disability Benefits Claim Time is a critical factor in filing your claim. As soon as you are able, you should file your claim to establish an onset date. This can be important for claims where retroactive benefits are available. If you can prove your disability began prior to your claim date you may be entitled to retroactive payments once your claim is approved. Did you know? Processing a disability claim can take several months depending on the amount of evidence and complexity of the claim. If you haven't heard from your insurer in over a month you should follow up to make sure they are not waiting on information from you to proceed! The first step in filing a long-term disability benefits claim is to gather your evidence. Some common types of evidence to include with your claim are: medical records showing the diagnosis, treatment and prognosis of your health condition from a medical professional; work records showing your past work history and wages; and statements from your employer or supervisors detailing the nature of your job. The more information you can provide to the insurance company or government department, the better the chances may be for quicker claim processing. One of the most common reasons claims are delayed is due to a lack of evidence. Once the claim is in the hands of the insurance company or government office, it will be reviewed for accuracy, completeness, and compliance with the qualification guidelines of the benefit program from which you are seeking assistance. Common Issues When Applying for Long-Term Disability Benefits When you have determined you qualify as disabled and wish to seek benefits for your disability you need to know where to turn first. Disabilities developed from an accident may be compensated through both your short and long term disability policy together with your auto insurance if it was an auto accident. Individual and group disability insurance coverage will require filing with the specific insurance companies. You should begin by contacting your insurance provider first to obtain the necessary paperwork to file, or establish a claim with an insurance adjuster. Preszler Law Firm :: 1 (800) :: Page 13

14 Obtaining the necessary medical records can also be difficult, especially if you are seeing several doctors for your disability. You should request your medical records from every medical professional involved in the diagnosis and care for your condition. Sometimes just a diagnosis and treatment records are not enough to establish that your disability is long-term and severely impairing. Your insurance company may require a specific statement from your doctor confirming the prognosis for your condition is of an undefined or permanent term. They may also need to provide an assessment of your limitations and confirm the severity of your disability. The insurance company may require a specific assessment document filed by your treating physicians. If not, you may need to contact your doctor's office directly to request such documents so you can include them with your claim. Time is an important factor in your claim. Many claimants face questions of why they waited to file a claim if they suffered the disability in the past. For example, your claim may be rejected if you are suddenly applying for disability benefits from an injury you sustained a year ago. The insurance company may see it as trying to make a claim for an unqualified disability, while the truth may be that the disability took time to manifest itself because of the nature of the injury or illness. These types of setbacks and barriers to securing long-term disability benefits are avoidable with the right actions and follow-up during the claims evaluation process. Preszler Law Firm :: 1 (800) :: Page 14

15 Chapter 6: Preventing Denial of Your Long-Term Disability Benefits Claim Did you know? According to Statistics Canada, Nova Scotia has the highest reported percentage of residents with disabilities (20%). Ontario falls in the middle of the spectrum with 15.5% while Nunavut has the lowest percentage of disability at 6.4%. Having a complete and thoroughly established claim is perhaps the best method of avoiding denial of your benefits. If you do have a qualified case of disability you will need to provide the evidence requested by your insurance company or claims manager or face delay or denial of your claim. Most insurance claims are rejected for the following reasons: the claimant does not meet the definition of disabled; the disability does not qualify as long-term; or the claim was made too late. It may seem like these reasons are indisputable, but you should never take a denial without questioning the decision. If you have done your research and feel that you meet the criteria for long-term disability, seek help in fighting for your rightful benefits. Avoidable Reasons for Claim Rejection Failure to provide all necessary evidence is perhaps one of the main reasons for claim delay or rejections. If you submit a partially documented claim, you will often be asked to provide more evidence. Insurance companies may also send a rejection notice right away without requesting the missing information. You can still appeal these decisions if you can respond with the additional evidence. Waiting too long to file your claim can also become problematic, as many insurance companies will cast doubt that your disability is severely impairing. Insurers might question why a claimant waited several months or years to seek disability benefits while arguing the disability began in the past. In your case, the disability may have manifested over several years, especially in cases of certain illnesses. Many accident injuries such as damage to the lower back or nerve damage may not cause severe impairment until months after the injury. These are conditions where the medical evidence from your treating physicians is extremely important to show you are justified in having not filed a disability claim until later after the injury or illness was diagnosed. Preszler Law Firm :: 1 (800) :: Page 15

16 Responding to the Insurance Company Promptly Keeps Your Claim Alive Insurance companies don't like to wait for responses to their inquiries, requests or offers. If the insurer requests you provide more evidence or sign a document, it may include a deadline by which you must submit the materials. Failure to meet the deadlines set by the insurance company may lead to a delay in settling your claim, and could even lead to rejection of your claim entirely. To avoid this, make sure you respond promptly to the insurance company, even if it is to inquire about the request first before responding. Preszler Law Firm :: 1 (800) :: Page 16

17 Chapter 7: Your Rights to Long-Term Disability Benefits For private and group disability insurance plans, you have the right to instate your benefits when you qualify as disabled under the definition in your policy. As long as you have paid your premiums and continue to keep your insurance policy valid, you should be able to collect benefits under the terms of your coverage. You have the right to adjust your coverage as necessary at any time after purchasing or agreeing to your disability insurance policy. You also have the right to discuss your policy with the insurance agent and have your questions answered by a disability insurance professional. If you are currently collecting disability benefits, you should be notified of impending termination of those benefits before the cut-off date. The notice should give the reason for benefit termination and give you the chance to respond to the decision. If at any time you feel your rights are violated, seek outside counsel from a professional familiar with disability insurance claims. If the insurance company unfairly denied or terminated your disability benefits, a lawyer who practices disability law can assist you in taking action against the insurance company. Payment of Your Benefits When your long-term benefits claim has been approved, you are entitled to payments in accordance with your insurance policy or the government schedule. Some insurance policies may have specific methods for calculating the value of your payments, based upon the type and severity of your disability. Before you accept the terms of your claim settlement, it is important to have your case reviewed by another professional such as a lawyer to ensure you are receiving all of the benefits to which you are entitled. In many cases the insurance companies attempt to pay the lowest possible amount for your disability so they can avoid acknowledging your right to full benefits. To continue your benefit payments you may be required to undergo annual evaluations of your disability status. Long-term disability benefits mean your condition must have lasted or is expected to last for a certain Preszler Law Firm :: 1 (800) :: Page 17

18 period of time as defined in your insurance policy. If your condition improves, you may no longer be eligible to collect benefits. A medical professional must determine improvement of a disability, and in many cases the insurance company will require you undergo the examination through one of its doctors. There have been cases where the degree of disability assessed in these exams is understated, leading to an unfair termination of benefits. If your benefits are terminated, you have the right to question the decision and ask for an explanation as to why your benefits were terminated and what you must do to get them reinstated. Preszler Law Firm :: 1 (800) :: Page 18

19 Chapter 8: Identifying Unfair Treatment By The Insurance Company Insurance companies are a business just like any other - they aim to keep their earnings in their own bank accounts. Insurers may employ several tactics to avoid paying disability claims in full - if they pay at all. Did you know? Disability insurance is regulated both by Canadian Law (the Insurance Act) and self-regulation through trade associations such as the Canadian Life and Health Insurance Association. Some of the common cases of unfair practices by insurance companies include: denying valid claims citing they did not meet the definition of disability; arguing you are misrepresenting the severity of your disability; claiming you no longer meet the definition of disabled as per policy guidelines; failing to disclose the full terms of your policy in regards to payment of claims, disability requirements, etc.; and refusing to offer explanation or justification of a denied or terminated claim. As a paying customer, you have the right to full disclosure of your policy terms. If at any time the insurance company refuses to disclose information related to the policy you are paying on, you should bring this issue to the attention of an attorney. Never take the insurance company's word as final. Even though the representatives are the "experts" handling your claim, they are not always fair about honoring claims on policies for which you have been faithfully paying. It's not that all insurers are trying to scam their clients; in many cases they will issue denials based upon misinformation. In these cases, it is wise to have a lawyer helping you appeal or litigate these decisions. What to Do When You Suspect Insurance Company Misconduct Keep calm. Insurance adjusters may have multiple claims in their hands at once, and you're unlikely to be their only client seeking benefits. Remember that the agents have limited ability to issue settlements and adjust outcomes, so it's unfair to vent your frustrations on them - in most cases they're just doing their job. Instead of getting angry, ask them to explain the decision on your claim or ask to speak to a supervisor but remember to always be very about what you say as it can be used against you. Preszler Law Firm :: 1 (800) :: Page 19

20 Ask questions. Don't take an unfair decision on your claim as the final word. Question why your claim was denied and ask for the decision in writing. The more information you have about the insurance company's point of view on your claim, the more you will have to work with if you appeal its decision. Fight for your rights. If you have been faithful paying your premiums, you have a right to the benefits you have been maintaining throughout your policy's duration. Even if your disability is not long-term, there may be other benefits you can take advantage of. If you are denied long-term benefits, inquire about other benefits for which you may qualify. Preszler Law Firm :: 1 (800) :: Page 20

21 Chapter 9: How a Disability Lawyer Can Help Did you know? Most disability law firms like the Preszler Law Firm work on a contingency fee the attorney is not paid unless he wins the claim for the client. Pay is then calculated as a percentage of the settlement. Many disability claimants are unaware that they have the power to fight back against the insurance companies if their disability claim is unfairly denied. Even though they are a large corporation, you have the right to retain legal counsel of your own to assist in negotiating a fair settlement or appealing the denial of your benefits. Your lawyer will become your liaison between you and the insurance company, ensuring your correspondence is handled in a timely manner and all requests are completed accurately and quickly. In cases where a claim is denied due to inadequate evidence of disability or longevity of a condition, a lawyer has the resources and knowledge to secure that evidence and submit it for reconsideration. In cases where appeals must go to court, your lawyer will be at your side every step of the way. Insurance companies have legal teams dedicated to fighting clams. You have the right to the same advantage by hiring a lawyer familiar with disability claim litigation. Not All Lawyers Are Created Equal There are two distinct types of disability insurance insurance provided by national insurers under a private or group policy and insurance provided by the Canadian government. There are several differences between each provider s claim and decision process. An attorney may advertise their services for disability claims, but only handle claims for CPP benefits. Therefore, when seeking an attorney, make sure he or she handles the type of disability benefit claim private or government you are attempting to resolve. Make sure you are seeking a lawyer who has a case history of winning settlements for long-term disability cases. You should ask potential lawyers about their past cases and request to review details of any cases similar to yours. Knowing that your lawyer has handled a disability claim just like the one you are bringing to their table can be a relief to you and your family. That's not to say that all disability cases are the same. Your lawyer should be able to answer your questions about the appeals process, your expected settlement, and the details of how your disability insurance policy works. Failure or reluctance to answer these questions can be a sign of an inexperienced lawyer and you should continue looking for a Preszler Law Firm :: 1 (800) :: Page 21

22 professional who has a full working knowledge of the Canadian insurance laws and regulations. Long-term disability claims are unique from other injury and disability claims, as they require that a settlement satisfy "the big picture." The longevity of the disability means you will need compensation to account for your lost income and ongoing medical needs for the future. These are not simple calculations - there is a large amount of evidence and predictive calculations that go into creating a fair estimate for the cost of your disability in the long-term. A lawyer with extensive case history for long-term disability claims will be knowledgeable in estimating the cost of living and expected losses due to disability. This allows him to properly gauge whether a settlement and benefit offer is fair or not in terms of your policy limits. Most disability lawyers work on a contingency fee basis, meaning they do not charge any fees unless they win your claim. Therefore, if you feel the insurance companies have treated you unfairly in their decision on your long-term disability claim, you should exercise your right to discuss your case with a lawyer. Preszler Law Firm :: 1 (800) :: Page 22