Feb 26

Can I go on Long-Term disability? The Test for Own Occupation and Any Occupation, Toronto Employment Lawyer

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When an employee feels unable to work because of a health condition, employees who have coverage may qualify for Long-Term Disability (“ LTD”). Many people who contact us, along with their doctors, believe that the health condition must be severe to the point of missing a limb or being bedridden in order to qualify for Long-Term Disability (“LTD”) benefits. The reality is, it is common for employees to experience mental disabilities, whether in the form or stress or anxiety, which are not easily observable and prevent them from working. Fortunately, these employees may still qualify for LTD benefits

The Test for Own Occupation
The real test for qualifying for LTD benefits is whether the employee is totally disabled from performing their own occupation for at least three or four months (or what is called the “Waiting Period”). According to the Supreme Court of Canada in Paul Revere Life Insurance Co. v. Sucharov (“Sucharov”), the insured may still be entitled to LTD benefits even if they are able to perform some of their employment tasks, as long as they are unable to perform “substantially all” of the duties of their position.

Similarly, the Court in Garavellos v. Mutual of Omaha Insurance Co. held that a restaurant-owner was totally disabled from their occupation, despite having been able to attend at the restaurant everyday and perform its bookkeeping. Moreover, the Divisional Court in Wilinsky v. Imperial Life Assurance Co. of Canada held that a dentist who was “unable to perform even one very minor duty of the practice of dentistry” would qualify for the receipt of total disability benefits.

The Court further instructed insurers that the total disability “definition provision was not intended to be, nor should it be, applied absolute literally.” Therefore, if you are an accountant, you may still be able to qualify for LTD benefits, even if you are able to perform day-to-day routines such as brushing your teeth, because your occupation requires more complex mental effort.

The Test for Any Occupation
Usually after being on LTD for 24 months, the threshold for qualifying rises. At this point, the insured must be totally disabled from performing any occupation for which he is qualified. According to the Divisional Court in Nantsios v. Canada Life Assurance Co. (“Nantsios”), the total disability must be based on the insured’s “education or lack thereof, age, work experience, and medical condition”, along with the insured’s continued inability to perform substantially all of the duties in any occupation for which they are qualified.

In Nantsios, the insured was a restaurateur who claimed he was totally disabled due to conditions such as arthritis. He was cut off his LTD after video surveillance showed him performing two hours of work consisting of short-order cooking, cleaning counters, and making sandwiches at a fast food restaurant over two days. The Court elaborated that “the test is not whether a job is within the insured’s capability, rather, the test is whether there is a full-time job for which the insured is reasonably fitted by what he has done before.” This meant that the insured who had a grade 10 education with limited proficiency in English and experience or training outside of the restaurant industry should still qualify for LTD benefits.

The cases above demonstrate that to be approved for LTD benefits, your health condition need not be extremely debilitating. Fortunately, courts understand that the threshold should not be so impossible to meet as many people suffer from a spectrum of illnesses, whether physical or mental, that would prevent them from performing their job. A legal expert, as well as your family doctor or other treating medical practitioner, can assist in determining whether you meet the standard for LTD benefits. At Monkhouse Law, we specialize in helping people who have been wrongfully denied LTD claims. If you have a question regarding your eligibility for LTD benefits, call Monkhouse Law today for a free consultation.

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