Long-Term Disability: What to Expect

Written by Sandev Purewal, Senior Associate & Lawyer   Many employers offer their employees benefit packages that include coverage for Long-Term Disability (“LTD”).  If an employee is unable to work for an extended period of time due to injury or illness, he or she is eligible to receive income replacement benefits as set out in the package.  In the event that LTD benefits are denied or terminated, an employee should consult with a lawyer—who will evaluate the insurer’s reasons for doing so.  If it is evident that the employee has been inappropriately denied LTD benefits, the lawyer will advise the client how to proceed legally in order to obtain the benefits to which he or she is entitled. Having represented numerous clients involved in LTD disputes over the years, our firm has extensive experience and knowledge of this process.  In order to provide an overview of what that process involves, we will identify the most important considerations and describe how to approach them.  These are general guidelines and, as such, we approach each case knowing it may well present unusual facts or circumstances that will require us to adjust our strategy accordingly.   “Total Disability” We begin the process of securing LTD benefits by examining our client’s insurance policy in order to determine how “total disability” is defined.  Answering that question depends on what is meant by the “period of disability.”   There are two distinct disability periods: the “own occupation” and “any occupation” periods. Typically, the disability policy will state that the employee is entitled to 104 weeks of payments, as long as that person cannot work at his or her “own occupation.”  When that first period ends, the “any occupation” period commences.  Extending LTD benefits to this second period—that is, beyond the two-year mark—is more difficult.  In the “any occupation” period, the definition of “total disability” states that the insured must be unable to complete the essential duties of any occupation for which he or she is suited by education, experience, or training. It is important to understand that the term, “total disability,” does not mean that the insured is completely incapable of performing any aspects of his or her existing job.  It may well be, for example, that the employee is physically capable of meeting the job’s demands, but is emotionally and/or mentally incapable of doing so.  Or vice versa.  It is also important to recognize that having attempted to return to work does not mean you cannot be successful in making a claim for disability.  People who have been injured or seriously ill are often highly motivated, for various reasons, to return to work.  But, when they attempt to do so, they discover that they cannot function adequately in the workplace.   Examination for Discovery It is clear, then, that the question of determining if an employee is totally disabled may not be an open and shut matter.  In representing clients, we focus on who made the decision to deny or terminate benefits, and what information that individual relied upon.  The law provides an essential procedure—the Examination for Discovery—which allows a lawyer to seek answers to those questions. The plaintiff/claimant may choose who attends the Examination for Discovery on behalf of the insurer.  In our view, the representative should be the person who made the decision to deny the claimant’s benefits.  We ask the representative to set out in detail his or her qualifications, the nature of the investigation he or she carried out, and the information relied upon.  The discovery process is invaluable in allowing us to ask relevant questions, to identify failures or flaws in the investigative process, and/or to expose that what may have seemed to have been a reasonable decision was based on biased or incomplete information. It is important to understand, for example, that many claimants are denied benefits as the result of a review of their medical file by the insurer’s “in house” medical director or doctor.  It may well be that, while that individual reached a decision that, on the surface, seemed reasonable, he or she did so on the basis of inadequate or incomplete medical information.  Alternatively, the representative may have applied guidelines or standards that do not apply to the case at hand.  Quite simply, the representative may have not recognized significant factors related to the applicant’s health and impairments or the nature of the functional demands of his or her occupation. In pursuing recognition of our LTD clients’ “total disability,” we draw upon the expertise of various professionals—medical, psychological, vocational, accounting—who are experienced in supporting such claims.  Their expertise is also useful in addressing clients’ post-settlement needs for further treatments and therapies, as well as advice on matters such as CPP disability applications and the tax consequences of the settlement award.   Full-Circle Care Our firm’s experience with LTD claims has taught us how important it is to remember that each client’s condition and circumstances are unique.  When they come to us, our clients are often burdened and challenged by not only their medical problems, but also by significant worry and stress about their families, their finances, and the uncertainty of their futures.  In recognition of that reality, we are proud of our team’s demonstrated capacity to provide informed and compassionate service that upholds our firm’s standard of proving full-circle care to all of our clients. If you would like to discuss the details of your disability claim, or are interested in learning more about your particular circumstances, please contact me at purewal@gluckstein.com or call me at 416.408.4252, Ext.228.