What Is Long-Term Disability?
What Is Long-Term Disability?
Written By: Sandev Purewal, Senior Litigation Lawyer
An individual who is unable to work for an extended period of time, due to injury or illness, is often eligible to receive income replacement benefits in accordance with the Long-Term Disability (“LTD”) payments that their employee benefits package insures. While an employee may regard their condition as obviously qualifying them for LTD coverage, they may find that, much to their dismay, their employer’s insurer has either denied payment or, in cases when it was initially approved, has arbitrarily terminated payments. Denial of LTD coverage can be highly distressing—especially so when one is injured or ill and emotionally vulnerable. In the event of denial or termination of your LTD payments, you should consult with a lawyer who has knowledge of LTD contracts and the law involved in order to best represent your interests.
Defining “Total Disability”
(i) Navigating The Legal Process
In my experience, many people have only the most basic understanding of their employee’s insurance policy. That is hardly surprising. Reading and understanding an LTD contract is often difficult and, in most cases, employees do not expect that they will become ill or injured. Securing the LTD benefits to which you are entitled begins with reviewing that policy in order to determine how the critical term, “total disability,” is defined. Understanding that term depends, in turn, on what is meant by the “period of disability.”
As I discussed in a previous post, there are two distinct types of disability periods: the “own occupation” and “any occupation” periods. In most cases, a disabled employee is entitled to payments over a period of 104 weeks if that individual’s physical and/or psychological impairments preclude a return to work at their “own occupation.” However, in those instances in which the employee’s physical and/or psychological condition is such that they are unable to work after that two-year period of coverage is exhausted, the standard for “total disability” is redefined. Eligibility for continued coverage means that the employee must be unable to complete the essential duties of “any occupation” for which they are suited by “education, experience or training.”
(ii) Challenging The Insurer’s Decision
Unfortunately, defining “total disability” legally is a more complicated and nuanced process than common sense would seem to dictate. The insurer informs you that your LTD benefits have been denied or terminated, and often does so with very little or no explanation regarding the decision. Although claimants do have the right to appeal such decisions, my experience suggests that remedy is often ineffective, frustrating, and time consuming. Fortunately, there is an alternative. An LTD lawyer can commence litigation against the insurer and challenge the denial by gathering evidence to support the disability claim.
(iii) Documenting Your Claim
First and foremost, you should understand that, if you are making an LTD claim, “total disability” does not mean that you are incapable of performing any aspects of your job. Thus, while you may be physically able to return to work, you may be experiencing significant psychological difficulties—including anxiety and depression, as well as cognitive challenges—that prevent you from being capable of working. Similarly, though you may feel highly motivated to return to work, and feel that you are emotionally and mentally capable of doing so, you may be physically incapacitated and functionally impaired to such an extent that you simply cannot work. You may even have tried to return to work, only to discover that you are incapable of doing so.
As a general rule, anyone making an LTD claim should make best efforts to keep an ongoing record of the impact of their injury or illness on their capacity to function. It is not uncommon for claimants to minimize the impact of their challenges, to attempt to “put on a brave face” in order to cope with their condition with the aim of returning to work. In doing so, they may avoid being assessed by health care providers or identifying what may become significant health problems. In the case of disrupted sleep, for example, it is prudent to keep a record of the number of hours you are sleeping and, if the problem persists, to discuss it with your family physician. Sleep deprivation is one of the more common symptoms that claimants typically regard as being nothing more than a nuisance initially, but can become a significant factor involved in aggravating or prolonging a physical or mental illness
If a claimant has been struggling with significant psychological problems, they may avoid seeking treatment. Unfortunately, the perceived stigma associated with mental health problems often results in claimants denying that they are impaired by conditions such as anxiety, depression, or post-traumatic stress. In order to be able to demonstrate clearly that you have done everything reasonable to recover your health and return to work, you should consult with the appropriate health care providers to assess your condition. Further, you should adhere to all medication regimens you are prescribed, and attend all therapies that are recommended. Maintaining accurate and complete records of your attempts to mitigate the damages you have sustained as a result of injury or illness strengthens your LTD claim.
(iv) Experts’ Reports
It is often necessary for LTD claimants to participate in medical and psychological assessments in order to document the conditions that are preventing them from working. The reports that the examining professionals produce are important sources of information in countering an insurer’s denial or termination of LTD payments. Similarly, claimants are often asked to participate in vocational assessments: a process that provides essential expert opinion regarding both the possibility of returning to pre-accident employment or pursuing alternative employment opportunities.
Our firm recognizes that dealing with the denial or termination of LTD benefits can be extremely stressful. We are aware that our clients are confronted by uncertainties regarding their health, finances, and capacity to resume working. We are proud of our team’s demonstrated capacity to provide informed and compassionate service in representing our clients in such difficult circumstances, upholding our firm’s standard of providing full-circle care to all of our clients.
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