Toronto Injury Lawyer Blog
The fine print matters. It especially matters in long term disability claims.
The overwhelming majority of personal injury cases are tort cases. They are not predicated on a contract.
Car Accident Cases
Dog Bite Cases
Slip and Fall Cases
Assault Cases
Product Liability Cases
All of these claims are based on negligence in tort law. They are not based on a contract.
Long Term Disability cases are very different because they are entirely based on contracts. That means that the wording of the long term disability policy (the contract) is very important to whether or not the case succeeds, or fails. One word in the contract can change the entire case.
A Plaintiff can be very seriously injured. But, if the wording of the long term disability contract is not in their favour, they might not win the case.
It’s important for a Plaintiff to know that the wording of every long term disability policy is different. This is significant because just because somebody you know won their long term disability case does not mean that you will win your case as well. There are so many different variables which go in to winning (or losing) a long term disability case. The wording of the long term disability policy is a great place to start.
So let’s start with some wording from a long term disability policy. We will begin with what’s really most relevant to the majority of claims; and that’s what it takes to meet the definition of disability based on the policy.
Keep in mind that just because you think that you’re disabled, or your family thinks that you’re disabled, or your doctor believes that you’re disabled; does NOT mean that you will meet the criteria/definition of disability under the long term policy.
Here is the definition of disability from a long term disability policy:
An employee will be considered totally disabled:
• during the elimination period and the following 24 months while the employee is
continuously unable due to an illness to perform the essential duties of the
employee’s own occupation, in any workplace, including in a different department
or location with the same employer or with another employer, and
• afterwards while the employee is continuously unable due to an illness to perform
any occupation, for any employer, for which the employee is or may become
reasonably qualified for by education, training or experience.
The availability of work with any employer does not affect the determination of total
disability.
An employee with 35 or more years of employment with the employer is totally disabled if
prevented by illness from performing the essential duties of the employee’s own
occupation.
Meeting this definition of disability is very difficult. It’s an example of a long term disability policy which is more in favour of the insurer rather than the claimant.
The claimant must be disabled from working at their own occupation at ANY department or workplace with the same employer or ANY other employer. This means that if you can do your own job at any department or at any other company, then you won’t meet the definition of disability.
The availability of work is NOT a factor. This means that if the employer doesn’t have a job for you, it does NOT factor in to the criteria for disability. The insurer can conjure up an imaginary job at an imaginary company which does not even exist. If you are able to do that job (which does not even exist), then you won’t meet the definition of disability following the 2 year mark when the definition of disability changes from “own occupation” to “any occupation“.
Often times clients want to know if they can sue their employer for not accommodating their disability on a return to work. That’s a difficult question which depends on a variety of factors. For starters, is the employee a part of a union? If the employee is unionized, then the employee CANNOT sue their employer. If the employee is dissatisfied, and wants results, then they must file a grievance through their union. The dispute will need to be resolved by way of collective bargaining through the union and the employer. This takes place outside of a traditional courtroom and does not involve lawsuits. It involves collective bargaining along with the potential for mediation or arbitration.
The next question is whether or not the employer fired the employee. If the employer did not fire the employee, but simply did not offer them modified duties, nor did they change their job duties or job description, then it’s likely a Human Rights case and not a wrongful dismissal or constructive dismissal lawsuit on account of the disability. Awards in Human Rights cases tend to be much lower than awards in civil lawsuits.
Watch out for the Exclusions or Illnesses/Disabilities which are not covered
The fine print in some of these long term disability policies can spell the death of your claim. You can have the most debilitating disability or illness, but if it’s not covered, or if it’s specifically excluded from the policy, the claim will fail. Some policies won’t cover for such things as soft tissue damage, back pain, or chronic pain. Other policies contain very lengthy pre-existing condition (Pre-Ex) clauses which state that any or all pre-existing conditions, regardless of what they are, will be excluded if they are the primary or secondary cause of the disability. These Pre-Ex clauses empower long term disability insurers and their lawyers to go back in time and sift through your pre-disability medical records to look for evidence of pre-existing disabilities which may have caused or contributed to the disability. How far back in time which those lawyers can go would be governed by the wording on then long term disability policy, or would be up to a Judge to decide. The more favourable the wording for the insurer, the further back in time the insurer can go in an attempt to defeat or to deny the Plaintiff’s long term disability claim. While none of this might seem fair, it’s because some of these policies are worded in such a way to minimize the insurer’s exposure on these long term disability claims. The provide the illusion of coverage, when in fact that coverage is very difficult to qualify for.
