David Yazbeck was one of several experts from across the globe who was recently invited to speak on effective whistleblower protection with Financier Worldwide Magazine, based in Birmingham, UK. David provided his insight into establishing effective whistleblower protection, whether through legislation or through internal company policies.
The article was published in February 2019 and can be found on the Financier Worldwide Magazine website.
Attempting to return to work after receiving long-term disability insurance benefits can seem daunting. Many questions arise, but one we often hear is “what happens if I fail or get sick again?” The short answer is that it depends on the amount of time that has passed since you returned work. You may start receiving long-term disability benefits again without having to wait. Or in other words, without having to satisfy another “elimination period”.
Most long-term disability insurance policies have terms dealing with successive periods of total disability. If you have returned to work and are unsuccessful or become ill again, then it will be important to review the terms of your policy with a disability benefits lawyer. The terms and time limits to qualify may vary from policy to policy.
Long term disability insurance policies will often have certain requirements. Some will allow an employee to restart benefits if they become ill or are unable to work due to the same illness or cause within a specific time period. For example, an employee with Fibromyalgia attempts to return to work following a one-year absence. A progressive return to work plan is established and the employee returns to work. Unfortunately, she suffers from a flair up of her symptoms and her treating physician provides the insurance company with a medical report stating that the employee is unable to work. Providing the recurrence took place within the time limit, this employee would qualify for an immediate reinstatement of benefits. Typically, the time limit for a recurrence of the same illness is 12 months.
Long term disability insurance policies will also often have provisions allowing benefits to be reinstated. This occurs if the employee becomes ill or is otherwise unable to work due to a related illness within a specific period of time, typically 6 months. A related illness is one that results from the same cause as the initial illness or disability. For example, an employee who develops mental health issues as a result of a physical disability. If they cannot work, this would be considered totally disabled due to a related disability. An employee whose related illness renders them totally disabled would qualify for an immediate reinstatement of benefits. Of course, this is providing the recurrence took place within the time limit provided in the policy.
In the event of Total Disability due to an unrelated cause or illness, Long term disability insurance policies also often provide for a reinstatement of benefits. In this case the time limit is typically one month. If this period has passed, then the employee will be required to satisfy the “elimination period” before having access to long term disability benefits.
Unfortunately, insurance companies may refuse to reinstate benefits even if the employee is within the time limit provided in the policy. They may argue that the fact that the employee was able to return to work temporarily demonstrates that they are not totally disabled.
Insurance companies may also refuse to reinstate benefits. This occurs when they do not believe the employee is experiencing a recurrence of the same illness or disability. It can also happen because they do not believe the new disability is related to the previous illness or disability.
Contact a disability benefits lawyer for assistance if your claim for reinstatement of long-term disability benefits is denied. We can often assist in resolving the issue with the insurance company. We can take action to obtain the necessary updated medical information or medical reports from the employee’s treating physicians or specialists.
[This article is for informational purposes only and does not constitute legal advice. Legal advice cannot be given without consideration of your individual circumstances.]
As part of its coverage on International Women’s Day, the Ottawa Citizen interviewed Andrew Raven to discuss the 20th anniversary of the Federal Public Service Pay Equity settlement. Andrew had represented the Public Service Alliance of Canada in this historic pay equity complaint, which sought to address systemic gender-based wage discrimination across the federal public service.
The final settlement, valued at $3.6 billion, affected over 200,000 federal government employees and remains the largest pay equity award in Canadian history. Since then, PSAC has continued to fight for pay equity on behalf of its members, including at Canada Post, the Government of the Northwest Territories, and at various separate employers in the federal government. While progress has been made in the last 20 years concerning pay equity, much remains to be done to address this important issue.
On February 28, 2019, Julia Williams participated in a roundtable discussion at the University of Ottawa on careers in social justice and labour law. The roundtable was a Q&A with practitioners offering insight into paths to labour law, followed by a discussion on the challenges and rewards of pursuing a social justice career. Julia would like to thank the Labour Law and Human Rights Association at the University of Ottawa, Faculty of Law, for inviting her to participate in this event.
RavenLaw is pleased to announce that Anna Lichty has been appointed to the Board of Directors of the Kiwanis Club of Ottawa.
The Kiwanis Club of Ottawa is a not-for-profit organization and registered charity with members who effect positive change within the Ottawa community by volunteering their time and raising funds for programs that promote youth literacy and leadership, help individuals with special needs and assist those struggling in the community.
Anna is thrilled to be joining the Board of Directors. Anna is an active member of the Kiwanis Club of Ottawa and previously a member of the youth group Circle K of the University of Ottawa. She looks forward to continuing to assist the Kiwanis Club of Ottawa with their initiatives.
Lyme disease is an inflammatory and infectious disease spread to humans through tick bites. It is caused by borrelia bacteria, which commonly infects animals. Ticks pick up the bacteria by biting infected animals and then passing it on to other animals, including humans. The disease can develop within days, weeks, or even years after infection if left untreated or improperly treated. In more extreme scenarios, albeit in an ever-increasing number of cases, it can gradually result in long-term disability, leaving people unable to work. This inevitably begs the question: Is there such a thing as a Lyme Disease Disability Claim? The short answer is yes but negotiating disability benefits for Lyme disease is often a long, arduous, and frustrating process.
Chronic Lyme disease symptoms can be diverse and vary in intensity, often making accurate diagnosis difficult or impossible, which is why claiming disability benefits for Lyme disease can be a long stressful process. Initial symptoms can include the development of a rash (sometimes shaped like a “bull’s eye” mark) and flu-like symptoms. Other symptoms can include fever, headache, nausea, jaw pain, light sensitivity, red eyes, muscle aches, and neck stiffness. They can also include arthritis, severe fatigue, headaches, vertigo, sleep disturbances, and mental confusion and can lead to significant functional impairment. Any mix of these symptoms can result in an individual being incapable of continuing to work.
There is no accepted diagnostic test for Lyme disease, but according to the Public Health Agency of Canada, cases are on the rise – both literally and statistically. In the early 2000s, cases known to have been contracted in Canada were relatively rare but during the latter part of the decade reached a reported high of more than 2,000 cases. Because the disease causes so many and varied symptoms that can be confused with other ailments, the real figure is almost certainly much higher.
Because diagnosis is based on symptoms and history of tick exposure, those applying for disability benefits for Lyme disease face challenges when dealing with health and insurance systems.
People who are unable to work as a result of the symptoms associated with a diagnosis of Lyme disease have a couple of potential options: Canada Pension Plan (CPP) Disability benefits or Long-Term Disability (LTD) benefits.
The main purpose of the CPP Disability is to support you if you have a mental or physical disability that regularly stops you from doing any type of substantially gainful work or have a disability that is long-term and of indefinite duration, or is likely to result in death. To qualify for CPP disability benefits, you must have been employed for ]four of the past six years and paid into the CPP program. You will also be required to show that your disability is severe enough to prevent you from working.
The other option is to apply for LTD insurance if you are enrolled in a plan. An LTD plan is commonly part of employee benefits packages and provides benefits should you be unable to work.
To make a successful claim for LTD benefits for Lyme disease, it is important to work closely with your doctor. You will need to discuss your symptoms, limitations, restrictions, and potential treatment options. Your doctor will then be required to provide a diagnosis, describe your symptoms, and record his or her findings. The insurance company will use this information to assess your level of functional impairment and determine whether you qualify for Lyme disease disability benefits.
Because the symptoms of Lyme disease are so diverse and common to so many other diseases and illnesses, confirming an LTD claim for Lyme disease will be challenging.
The foundation for a successful disability claim for Lyme disease is a detailed record of symptoms you are experiencing, along with notes describing how those symptoms prevent you from working. Those notes should also include all the treatments you have undergone, along with their intended effect and their actual effect.
For these reasons, it is crucial to record how the disease has progressed and identify any possible patterns and/or correlations with other factors (environment, sleep, diet, activity level, etc.). In all cases, it is important to be honest and candid about your symptoms and to keep lines of communication open with your physician.
Throughout the LTD claims process, you and your doctor will be asked to provide information on a number of important areas including your symptoms, their impact on you (limitations/restrictions etc.), and any progress or regression you experience. You will be required to report on all treatments you have received, the impact of those treatments, and the future plans and prospects for managing your condition.
If your disability claim for Lyme disease is denied, you can fight the decision through the insurance company’s internal appeal process. This can be done with the help of a disability lawyer. The insurance company may change their decision if you are able to provide new or additional medical evidence. You can also hire a disability lawyer to pursue legal action against the insurance company. No matter which route you choose, seeking legal advice as quickly as possible after benefits are refused is extremely important as there are time limits to both the internal appeal process and to pursuing litigation.
We are here to help navigate the LTD application process. Consult one of our experienced Disability lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for disability benefits or if your claim for benefits has been denied.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
Sources:
https://www.webmd.com/rheumatoid-arthritis/arthritis-lyme-disease#2-6
Short term disability insurance pays you when you cannot work because of an injury or illness. Simply stated, you qualify for these benefits when a medical condition prevents you from doing your job. Your plan can probably cover the first months of absence due to sickness or injury. The length of the insurance varies from one policy to another.
If you are ill or injured and cannot work, your short term disability plan can pay a percentage of your usual income defined by the plan. Plans usually cover 60% to 85% of your income, however, certain plans will cover up to 100% of your income.
Often, as an injured or ill employee, you will first use any available sick days, which are governed by your employment contract with your employer or your collective agreement. Short term disability insurance is usually the next step after having used all remaining sick days, if available. Once exhausted, then employees are typically entitled to receive long term disability insurance. Many people receive their disability insurance coverage through a plan carried by their employer. It is a good idea to ask about coverage when starting a new job.
Like short term disability benefits, long term disability insurance is an insurance that protects employees from loss of income if unable to work. However, certain plans require that the employee apply and get accepted onto short term disability, if they have that coverage, before receiving long term disability.
Quite often, the short term disability benefits will cover the “waiting period” or “elimination period”, which needs to expire before you can qualify for long term disability benefits. In contrast, long term disability typically expires when an employee reaches the age of 65 or retires.
The definition of disability may vary between short term and long term disability. Frequently, short term disability benefits are provided when an employee is unable to do his or her own occupation. Once the employee is approved for long term disability, and 24 months have expired, the definition of disability under the long term disability policy may change in that the employee is entitled to long term disability benefits if they are unable to work in any occupation.
Amount of income received under the policy is another difference between the two types of disability insurance. To determine your entitlement, refer to your benefits schedule in your policy or benefit booklet.
Government of Canada employees are covered by the Treasury Board of Canada’s Disability Insurance Plan. That plan does not include short-term disability coverage. You are expected to be covered by your accumulated sick leave until you meet the thirteen-week minimum waiting period to qualify for long-term disability benefits.
Specifically for those covered by the Treasury Board plan, you are covered for any disability that prevents you from working your regular job for the first 24 months of disability. Afterwards, you will continue to receive benefits if your disability prevents you from working a “commensurate occupation.”
If you do not have short term disability coverage through your employer or otherwise, you may still qualify for sickness benefits through Employment Insurance (EI). Through EI you may be eligible to receive 15 weeks of EI sickness benefits. There are certain requirements such as having accumulated at least 600 hours of insurable employment during the respective qualifying period.
If your application for short term disability benefits is denied, then you may want to speak an experienced disability benefits lawyer.
We are here to help navigate the short-term disability claim process. Consult one of our experienced Disability lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for disability benefits or if your disability claim for benefits has been denied.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
By: Raphaëlle Laframboise-Carignan, Anna Lichty and Zachary Rodgers (articling student)
Earlier this year, the Ontario Divisional Court issued a decision in Western Life Assurance Company v. Penttila, 2019 ONSC 14 (CanLII) addressing when the time limit for filing a claim, known as the limitation period, begins to run for individuals who were denied long-term disability (LTD) benefits. The Court determined that the limitation period starts once the individual receives a final decision from the insurance company. This is after all appeals are finished.
Ms. Pentilla was receiving Long Term Disability benefits from Western Life Assurance Company. In February 2013, Western Life advised her that, effective March 2013, she would no longer meet the definition to qualify for benefits. In their letter, Western Life informed her while she could appeal the decision, they were not waiving their right to rely on any statutory time limit. Ms. Pentilla appealed the decision and provided additional medical information. In November 2013, Western life asked for more medical information, and wrote to Ms. Pentilla that they would complete the review of her appeal once they received the information. Their letter did not include any statement about relying on statutory time limits. In October 2014, Western Life wrote to Ms. Pentilla that they had reviewed the new medical information, but their position remained unchanged. Several months later, Ms. Pentilla told Western Life she had not received a decision letter, and so, in June 2015, Western Life wrote to Ms. Pentilla that she did not meet the definition for Long Term Disability benefits and therefore any further benefits remained denied. Approximately one year later, in June 2016, Ms. Pentilla issued her statement of claim.
Western Life brought a motion for summary judgment that Ms. Pentilla’s claim should be statute barred because she had not brought her claim within two years of it being discovered. In Ontario, the Limitations Act, 2000 provides a two-year limitation period for most claims, meaning that an individual must start legal proceedings within two years of their claim being discovered. The motion judge dismissed Western Life’s motion for summary judgment, finding that Ms. Pentilla’s claim was discovered in October 2014 or June 2015 because before those dates, a reasonable person would not have understood that a proceeding was an appropriate remedy. Western Life appealed that decision to the Divisional Court.
On appeal, Western Life argued that Ms. Pentilla should have known that a legal proceeding would be an appropriate means to seek a remedy by March 2013, when she no longer qualified for benefits. Ms. Pentilla argued that, by March 2013, Western Life had not finally determined her appeal, so a legal proceeding would not have been appropriate.
The Divisional Court upheld the motion judge’s decision. The court found that the two-year limitation period started on the date it would be appropriate to begin legal proceedings for payment of Long Term Disability benefits that the insurer refused to pay. A reasonable person in Ms. Pentilla’s situation would have made an internal appeal to Western Life before starting legal proceedings. At all times between receiving her initial denial in February 2013 and receiving her final appeal decision in June 2015, Ms. Pentilla believed that Western Life was considering her appeal. In this case, Western Life’s statement that it was not waiving its right to rely on statutory time limits was not sufficiently clear to show Ms. Pentilla that the limitation period was running before her appeal had been decided.
The Divisional Court’s decision is a positive step for individuals who have been denied Long Term Disability benefits. It reinforces that the statutory time limit for starting a legal proceeding may not begin to run until the insurance company has issued a final decision. The Court also reinforced that it is reasonable for an individual to go through the insurance company’s internal appeal process before starting litigation.
This decision follows the Ontario Court of Appeal’s decision in Kassburg v. Sun Life Assurance Company of Canada, which found that the court must consider when the claim was clearly and unequivocally denied. In Kassburg, the Court also upheld a motion judge’s conclusion that the insured discovered her claim on the date of the letter in which the insurer told her that her final appeal was denied.
These cases suggest that legal proceedings may be premature until the insurance company’s internal appeal process has run its course. This determination, however, will depend on many factors, including the clarity of the language that the insurance company uses to show that the statutory limitation period runs during the time the internal appeal is being considered. See our article, Limitation Periods for Long-Term Disability Claims. If your insurance company has denied you Long Term Disability benefits, contact a lawyer to discuss your legal rights and how limitation periods may apply in your situation.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
RavenLaw is proud to sponsor the 20th Annual County of Carleton Law Association/Great Canadian Theatre Company Lawyer Play. The annual fundraiser supports the operations of Great Canadian Theatre Company (GCTC) and benefits a charity partner, which this year was St. Mary’s Home, an Ottawa-based social service agency that provides a full range of programs and services for young pregnant women, young moms and dads, and their infants and young children.
Over the last 20 years, the Lawyer Play fundraiser has raised well over $1 million dollars for GCTC and designated charity partners. Each year, the play’s cast is composed entirely of members of Ottawa’s legal community. This year’s play, War of Two Worlds, runs from June 6-8, 2019 and features RavenLaw lawyer Amanda Montague-Reinholdt as Flo.
In a recent decision, a labour arbitrator found that an employer had failed to exhaust the search for accommodation options for an employee with a permanent disability before attempting to terminate her employment.
In Sodexo Canada Ltd v Canadian Union of Public Employees, Local 145, Arbitrator Randi Abramsky recognized that the search for accommodation for the grievor’s disability had been a long and difficult one. Nonetheless, she determined that the employer had not yet met the point of undue hardship in accommodating the grievor when it attempted to end her employment in mid-2018.
The Arbitrator found that the employer had not addressed two considerations which were fundamental to its duty to accommodate. First, the employer could not establish that the grievor was unable to perform a modified version of her former position using assistive equipment. Second, even if the grievor could not perform her own position, the Arbitrator found that the employer had not looked beyond the grievor’s original work location to attempt to find position she could perform at other worksites.
As a result, the Arbitrator concluded that the employer had breached its procedural duty to accommodate the grievor, contrary to the Human Rights Code. She therefore directed the employer to work with the grievor and the Union to explore these accommodation options, with the issue of damages and compensation for the breach to be determined once the accommodation process concluded.
The Union was represented in this case by Morgan Rowe of RavenLaw.