“Totally disabled” is a legal term with a special meaning. Generally, the definition of “totally disabled” in Long Term Disability policies is: If the employee is unable to perform substantially all their essential and material job duties, they are said to be “totally disabled”. “Totally disabled” does not mean the employee ia completely incapacitated and unable to care for themselves.
How does the insurance company determine whether you are “totally disabled”?
The assessment by the insurance company of what is considered totally disabled changes over time. When you first apply for long-term disability benefits, the assessment of total disability is based on whether you can perform the duties and responsibilities of your own occupation. After two years of receiving long-term disability benefits, however, the insurer will assess whether you can perform the duties of any occupation.
What is Long Term Disability Insurance and who is qualified?
Long Term Disability (“LTD”) insurance is a safety net for employees who become injured or sick to the point where they are unable to return to work. As long as an employee has long term disability insurance coverage at the time they become disabled, they are qualified to apply for long term disability benefits. The conditions covered by a policy range from physical injuries to mental health illnesses.
Unfortunately, disabled employees are often denied LTD because their insurance companies deem them to be not ‘totally disabled’. What can an employee do if their LTD claim is denied? To answer this question, it is important to understand what “totally disabled” means in LTD claims.
Own Occupation vs Any Occupation
There are two definitions or standards of disability that are used in LTD policies: an employee’s own occupation and any occupation.
In summary, the difference between own occupation and any occupation is:
- Own Occupation: the employee is totally disabled and unable to perform the essential duties of their current position.
- Any Occupation: the employee is totally disabled and unable to perform any occupation or job that they are reasonably qualified for based on their training, education, or experience.
Usually, after two years of being on long-term disability benefits, the insurer will assess whether the employee can perform any occupation. At this point, the employee must be unable to perform any occupation for which they are qualified.
Does Being Totally Disabled Mean I Can’t Work?
“Totally disabled” does not mean the employee must be completely incapacitated and unable to care for themselves.
According to the Divisional Court in Nantsios v. Canada Life Assurance Co. (“Nantsios”), the total disability must be based on the employee’s “education or lack thereof, age, work experience, and medical condition”, along with the employee’s continued inability to perform substantially all of the duties in any occupation for which they are qualified.
In Nantsios, the employee was a restaurateur who claimed he was totally disabled due to conditions such as arthritis. His LTD benefits were denied 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 employee’s capability, rather, the test is whether there is a full-time job for which the employee is reasonably fitted by what he has done before.” The Court noted that working the video surveillance was not reflective of the kind of work that Nantsios was engaged in prior to his disability arising. As a result, Nantsios still met the definition of Total Disability under the law, even though he could complete some of the duties of any occupation.
Nantsios demonstrates that to be approved for LTD benefits, the employee’s health condition need not be extremely debilitating. 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.
In Paul Revere Life Insurance Co. v. Sucharov, the Supreme Court of Canada expressly agreed that “the test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so.”
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 every day and perform its bookkeeping.
Simply put, the employee 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. Even if someone can do some of their job, they can still be considered “totally disabled” if common sense requires that the employee stop working if his condition requires it.
Examples of Total Disability
Some examples of totally disabled include but are not limited to:
- Brain injuries
- Chronic illnesses
- Chronic pain
- Neurological diseases
- Orthopaedic injuries
- Psychological conditions like depression and anxiety
The exact definition of the term “totally disabled” will vary somewhat depending on the wording in each LTD policy. If there is any dispute, all LTD policy definitions of “totally disabled” are given a rational and liberal interpretation by the courts, regardless of the precise wording in the insurance policy.
What Happens If You Believe You Are Totally Disabled?
If you have an LTD policy, you might consider contacting a lawyer who focuses on LTD and employment law, such that they can advise you on:
- Advising if you have a “total disability” as per your policy and the legal tests;
- Helping you decide if you should apply for LTD or seek a disability accommodation;
- Helping you prepare your LTD application through your insurer;
- Organizing medical documents and forms that support your LTD application;
- Advising on next steps and follow up procedures that will occur over the next two years if you are approved for LTD at the outset;
- Appealing the decision if you are not approved for LTD or if you are cut off from LTD after being approved.
I’ve Been Denied My LTD; What Can I Do?
When filing a disability claim, it is important that you go to a doctor or a specialist who has expertise in the medical condition that you are coping with. Make sure they provide accurate details about your prognosis and required treatment.
It is also important that you discuss with your doctor or specialist your job duties and how your condition may affect your ability to fulfill those duties. Consider the physical and mental demands that are required and what limitations you will face. This is important when evaluating whether you can fulfill the essentials of your own job as determined in the ‘own occupation test’.
A legal expert can assist in determining whether you meet the standard for LTD benefits, as well as ensure that your insurer interprets the disability policy accurately and justly. At Monkhouse Law, we specialize in helping employees who have been wrongfully denied LTD claims. We have helped many employees successfully challenge insurers’ denials of their LTD claims. If you have a question regarding your eligibility for LTD benefits, you should contact an LTD Lawyer at Monkhouse Law for guidance.
Employment Lawyers at Monkhouse Law specialize in Employment Law, Human Rights Law, and Disability Insurance Law. We strive to get optimal results for every client through skilled advocacy and research on each matter. We have successfully represented clients before all levels of court in Ontario, including the Superior Court, the Divisional Appeals Court, and the Court of Appeal and have also appeared before the Supreme Court of Canada.
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