Howie, Sacks & Henry LLP – Personal Injury Law – Brad Moscato
Brad Moscato

If you’re injured or sick and unable to work, your first step is to apply for disability insurance benefits. As I’ve mentioned in earlier articles (1, 2, 3), the specific criteria of those benefits will depend on the policy set up by your employer. So, it’s always best to read through the group plan to understand its limitations and expectations more clearly.

If you’ve filed a disability claim but have been denied or if you’ve been receiving benefits and then had them terminated, it can be a confusing, frustrating and even scary time. But you’re not alone. Denials and terminations are unfortunately a common outcome in many cases. What should you do if your benefits have been denied? First, check to see if your benefits were denied due to missing forms or information.

If missing paperwork is not at issue, a number of other reasons could explain the denial of benefits, including the following:

1. Insufficient or lack of medical evidence

Even if your doctor confirms your inability to work, the insurer may still deny or terminate your benefits. It’s important to ensure that the medical records and/or reporting letters from your doctor demonstrate very specifically why you’re functionally unable to complete the essential duties of your job requirements.

If your benefits are being terminated due to the insurer not believing you’re not really disabled, ask your doctor if they feel you effectively meet the “Own Occupation” or “Any Occupation” tests. If the answer is yes, ask them to write a letter to the insurance company. The Own Occupation test usually states that  you can’t meet the specific duties of your occupation, while the Any Occupation test determines whether you’re unable to do any kind of work as a result of your medical condition or conditions.

2. Surveillance

The challenge with surveillance – and the denial that may result thereof – is that sometimes the results are based on only a few hours of observation. And those moments may not accurately reflect your disability. Often, surveillance can be challenged.

3. Pre-existing condition

If you have not worked for your employer for longer than 12 months, and therefore have not been in receipt of group benefits for at least 12 month (including LTD coverage), then an insurer can look back at your pre-existing health (usually 3-6 months before the commencement of your coverage or commencement of your employment) to see if the reason you are applying for disability benefits is based on the same or similar condition that you had previously. If that is the case, a denial by the insurer will likely follow. Things are not, however, always as straightforward. A denial based on a pre-existing condition would be deemed in bad faith if there are other conditions at play and you can prove that information was only gathered on the pre-existing ones.

4. Lack of objective evidence

As I explained in my previous article, there are certain conditions such as fibromyalgia that are difficult to prove based on objective tests like an x-ray. Nevertheless, these conditions are increasingly accepted as legitimate medical illnesses by both doctors and courts alike. A lack of objective evidence does not mean you are not disabled under the policy. The Supreme Court of Canada has made this quite clear.

Can a disability lawyer help me?

If your insurer decides to deny or terminate your benefits despite your attempts to prove you’re entitled to them, you may need to take legal action. For many, the thought of fighting an insurance company alone is daunting , especially if you’re dealing with a chronic illness or mental health issues. That’s where a qualified LTD insurance lawyer can really help. Not only will their expertise increase your chances of success, an experienced lawyer can ensure your claim is resolved in a timely manner.

A disability lawyer understands the claims, forms, and evidence needed as well as the common tactics of insurers. A lawyer can ensure your case is prosecuted effectively and efficiently.

The important thing is not to wait to make that first call. After all, the longer you wait, the longer it will take for benefits to be reinstated or started. What’s more, there are several provisions in these policies that provide for strict timelines. Missing these timelines could prove to be another reason the insurer will use to refuse paying your benefits. There’s also a one or two year limitation period for these types of claims, depending on the date your policy came into effect. The limitation period begins when the insurer stops or refuses to pay your benefits.

Contact us

For more information or to speak about a denial of short- or long-term disability benefits, please contact Brad Moscato, Past Chair of the LTD Section, Ontario Trial Lawyers Association, at 416-646-7655 or bmoscato@hshlawyers.com,

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Since 2011 Canadian Lawyer Magazine rated us one of the top personal injury law firms in Canada. Why? With close to 20 years helping accident victims and their families, our firm understands the laws that affect your rights to compensation because we’ve helped shape those laws in favour of accident victims.

Among the best in Canada

Since 2011 Canadian Lawyer Magazine rated us one of the top personal injury law firms in Canada. Why? With close to 20 years helping accident victims and their families, our firm understands the laws that affect your rights to compensation because we’ve helped shape those laws in favour of accident victims.