You’ve fallen ill or suffered an injury, and now find that doing your job is difficult. Your doctor agrees you need time to recover. Looking through your disability insurance policy you see the words “total disability” to be eligible for benefits. Most people would assume “total disability” means totally unable to care for themselves. So, they believe they’re not eligible for benefits and go back to work further exacerbating their illness or injury.
Catherine Shearer is a personal injury lawyer at McKenzie Lake Lawyers in Guelph. She has seen countless cases of workers being scared off by legal language such as “total disability” in their insurance policy.
Most people assume “total disability” means you can’t shower or bathe or you’re a quadriplegic needing round-the-clock care.
But that’s not the case.
Shearer said, “To be deemed totally disabled simply means you’re unable to do your job. It’s an insurance industry scare tactic. If you’re sick or injured, and your doctor says you can’t go to work, you likely meet the test for total disability.”
Deceptive wording is being used deliberately by some insurance companies to discourage claimants from applying for benefits. Shearer said, “This is one of the ways insurers try to intimidate claimants into walking away from benefits to which they are entitled.”
What does “total disability” mean?
While every policy is different, most disability policies define total disability as the inability of the claimant to perform their own occupation due to illness or injury. It’s an occupation-based definition which has been supported by the courts.
Shearer said, “The insurance industry is counting on people to not read the hundreds of pages, some written in complex legal jargon, to learn exactly what total disability means. The employee needs a simple document, written in clear language that states they can take time off work and get paid their benefits.”
After 24 months, the definition in most policies changes from a claimant who is unable to do their own job, to unable to do any occupation. But…
Any occupation does not mean any old job
“Any occupation” does not mean that the claimant is incapable of performing any job at all. It means that the claimant is unable to engage in any gainful occupation that the insured is reasonably suited for based on their education, work experience, remuneration and other individualized factors.
Shearer said, “For example, if someone is working at a high-level executive job, they can’t be required to do entry level work. Or, if someone is a professional athlete it would not be reasonable for them to work at an entry-level position in a bank.”
Claimants should not walk away
Some insurance companies are experts at deceiving claimants and wrongfully delaying, denying, and terminating disability claims.
Catherine Shearer has seen people with a serious injury who walk away after reading the words “total disability.” “They never apply and end up struggling to make ends meet in a job they can’t really perform.”
Others who do make a claim, supported by their doctor are sent a letter telling them they don’t meet the total disability test. Shearer said, “Even though the total disability language is misleading, the claimant will accept that they’re not eligible, when the reality is, most of the time, if your doctor is supporting a leave from work, you meet the test for total disability. The denial should not have happened, and you should be disputing it.”
Appeals can take months and even with additional evidence, the insurance company often comes back with the same decision. Shearer said, “It’s easier for the insurance company to continue denying the claim and hope that the claimant goes away and does not contact a lawyer”.
What if you’ve been forced to leave your job?
If an injured employee has been fired or has left voluntarily, Shearer points out that employees are still entitled to disability benefits after their employment has ended, and they can still apply for benefits during their notice period.
Shearer said, “This applies if their employer knew or ought to have known the employee was suffering from a disability and did not advise them of their ability to apply for benefits. There is one caveat on this; the applicant must still apply to the disability insurer during the specified time period in the policy.”
If you do meet the test under any occupation, benefits are typically available to age 65, if you continue to meet the test for disability. Most policies require the claimant to apply for CPP disability benefits, usually at the 2-year mark. This reduces the amount the insurer must pay, as they get a deduction for government funds.
Consult an experienced personal injury lawyer
If employees are uncertain as to whether their illness or injury meets the test of “total disability”, Catherine Shearer advises them to contact a lawyer. “It’s important to obtain legal advice and representation to ensure they receive the benefits to which they are entitled.” The initial consultation is free.
It doesn’t cost anything to seek out legal advice and get pointed in the right direction. Shearer has seen people drain their bank accounts and cash in investments to make ends meet when they should have been collecting benefits.
Contact Catherine Shearer at (226) 203-1243 or Email: Catherine.Shearer@mckenzielake.com