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.

WHAT ARE THE FIRST STEPS IN APPLYING FOR SHORT TERM DISABILITY BENEFITS?

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.

WHAT IS THE DIFFERENCE BETWEEN SHORT-TERM AND LONG-TERM DISABILITY INSURANCE?

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.

WHAT IS MY DISABILITY COVERAGE AS A CANADIAN PUBLIC SERVANT?

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.”

WHAT IF I GET SICK AND I DO NOT HAVE COVERAGE?

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)

Long Term Disability (LTD) is intended to provide income replacement coverage if you are unable to work due to injury or illness. Long term disability benefits will normally commence once your short term disability benefits, if you have this coverage, have been exhausted. Most Long Term Disability policies contains a waiting period or elimination period, before you can start receiving payments. Once the elimination period passes, the insurance company has to determine whether you are “totally disabled”, i.e. unable to do your job, or in some cases any job, due to an injury or illness. If you meet this definition, which can vary from policy to policy, then your Long Term Disability coverage can begin. The following are some important points you should be aware of when applying for Long Term Disability benefits.

How long is my Elimination Period?

Your insurance policy will provide a specific elimination period, as these vary between insurance companies. In many cases the elimination period is set to correspond with short term benefits. For example, many plans that include short term disability coverage are designed so that your elimination period ends when the short term benefits run out, which means your benefits become payable without a gap in coverage.

How long is the elimination period? Will you be able to access short-term benefits in the meantime? Does your policy say that you have to apply for Employment Insurance benefits? How is your elimination period calculated? These questions would be answered in your policy. Taking the time to read your policy can prevent costly mistakes and loss of time  in the application process.

What is the impact of returning to work on my Elimination Period?

It is very important to understand how your elimination period is calculated. Depending on the method of calculation, you may restart the elimination period if you return to work. This would delay the payment of Long Term Disability benefits. For example, suppose that your policy prescribes a 90 day elimination period. If your policy calculates the period in terms of “consecutive days”, returning to work for just one day during that period  may restart the 90 day waiting period. On the other hand, if your elimination period allows for “interrupted periods”, the you can go to work on certain days without restarting the 90 day process.

If You Have a Recurrent Disability, You May Get to Skip the Elimination Period

If you received Long Term Disability in the past for the same illness or disability, then most Long Term Disability policies contain a clause allowing you to skip the elimination period.  This is usually found in the policy under the heading of “recurrent disability”. The policy will typically treat this later period of disability as a continuation of the earlier period, provided it is within the time limit stated in the policy. For example, suppose you previously went on Long Term Disability with a back injury, and eventually returned to work. If you become disabled later on due to back pain from the same injury, your benefits can be reinstated immediately, without the need to wait for the elimination period to end.

On the one hand, these clauses are useful because they allow you to avoid waiting through another elimination period for the same disability. On the other hand, any time limit for payment of benefits runs from the start of the first period of disability. This means that if your policy pays benefits for two years per claim, the two-year period would not restart the second time you go on Long Term Disability for the same disability. For more information, see our article on Successive Periods of Total Disability.

My Elimination Period is Over and I’m Still Disabled – Do I have to Apply for Long Term Disability?

Receiving short term benefits, if you have this type of coverage, does not automatically entitle you to Long Term Disability coverage even if your disability has not changed. You should start your Long Term Disability application as soon as you know that you are unable to return to work before of illness or injury. At this point, your insurance company will want proof that you are “totally disabled” under the terms of the policy before they approve your claim. The application process can be long and difficult, and it often requires lots of medical evidence. For more information on how to navigate through the Long Term Disability application process, please see our article.

Getting Approved for Long Term Disability – Do I Meet the Definition for “Total Disability”?

Once you have applied for Long Term Disability and your elimination period has passed, the benefits become “payable”, but before you actually get “paid”, the insurance company has to determine that you remain unable to do your occupation. To make this decision, the insurance company looks at the medical documentation and compares it to the definition of “total disability” in your policy. If you meet the definition your Long Term Disability claim will be approved and your benefits will begin.

If there is excessive delay in providing your long term disability benefits, you may have a claim for aggravated (bad faith) and punitive damages against the insurance company. Please see our article “Mental Distress and Punitive Damages in a Long Term Disability Claim”.

Once your benefits begin, they usually continue for 24 months. This 24 month period is called “own occupation” coverage because the insurance company defines total disability as being unable to do the essential duties of your own occupation, whether in your current work place or not.

After 24 months however, the definition of total disability usually changes. If you want to continue receiving benefits you need proof that your disability leaves you unable to perform the duties of any occupation for which you are reasonably qualified. This rule applies even if you are still unable to return to work at your original job. In practice this means that you may lose your benefits even if your medical situation remains unchanged.

Take away

The Long Term Disability application process can be long, complicated and stressful. A Long Term Disability applicant faces a number of legal and administrative hurdles at a time of great vulnerability. It is easy to make mistakes that cause costly delays. An experienced disability lawyer can help you understand the terms of your policy and how to make your way through the application process.

We are here to help navigate the Long 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: Raphaelle Laframboise-Carignan, Anna Lichty and Geoff Dunlop (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.

Background

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.

The Motion Judge’s Decision

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.

The Divisional Court’s Decision

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.

Discussion

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.]

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 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.

As part of its coverage on International Women’s Day, the Ottawa Citizen interviewed Andrew Raven to discuss the 20^th 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.

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.

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.

Recurrent Disability

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.

Related Disability

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.

Unrelated Disability

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.]

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.

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.