Apply for disability benefits? Avoid common pitfalls by knowing these important legal terms

You have become ill or injured and now find it difficult to do your job. Your doctor agrees that you need time to recover. Looking through your disability insurance policy, you see the words “total disability” to qualify for benefits. Most people would assume that “totally disabled” means completely unable to care for themselves. Thus, they believe they are not eligible for benefits and return to work, further aggravating their illness or injury.

Catherine Shearer is a personal injury lawyer with McKenzie Lake Lawyers in Guelph. She has seen countless cases of workers scared off by legal language such as “total disability” in their insurance policy.

Most people assume that “total disability” means you can’t shower or bathe, or you’re a quadriplegic requiring 24-hour care.

But this is not the case.

Sherer said, “To be considered totally disabled simply means that you are unable to do your job. This is an insurance industry scare tactic. If you are ill or injured and your doctor tells you that you cannot go to work, you probably meet the criteria for total disability.

Misleading wording is deliberately used 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 giving up benefits to which they are entitled.”

What does “total disability” mean?

Although every policy is different, most disability policies define total disability as the claimant’s inability to practice their own occupation due to illness or injury. It is a profession-based definition that has been supported by the courts.

Shearer said: “The insurance industry relies on people not to read the hundreds of pages, some written in complex legalese, to find out exactly what total disability means. The employee needs a simple document, written in plain language, indicating that he can take time off work and collect his benefits. »

After 24 months, the definition in most policies changes from a claimant who is unable to do their own work to unable to practice a profession. But…

Any profession does not mean any old job

“Any occupation” does not mean that the applicant is unable to perform any employment. This means that the claimant is unable to engage in any gainful occupation for which the insured is reasonably fit based on education, work experience, earnings, and other individualized factors.

Shearer said: “For example, if someone is working at a high level management position, they cannot be expected to do entry level work. Or, if someone is a professional athlete, it wouldn’t be reasonable for them to work at an entry-level position in a bank.

Applicants should not stray

Some insurance companies are adept at misleading claimants and falsely delaying, denying and terminating disability claims.

Catherine Shearer watched seriously injured people 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 do.”

Others who make a claim, supported by their doctor, receive a letter telling them that they do not pass the test for total disability. Shearer said: ‘Even if the language of total disability is misleading, the claimant will accept that they are not eligible, when in reality most of the time if your doctor pays for leave from work , you complete the test for total disability. The denial should not have happened and you should challenge 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 just keep denying the claim and hope the claimant walks away and doesn’t contact an attorney.”

What if you were forced to quit your job?

If an injured employee was terminated or left voluntarily, Shearer points out that employees are still entitled to disability benefits after their employment ends and can still apply for benefits during their notice period.

Shearer said: ‘This applies if their employer knew or should have known the employee had a disability and did not advise them of their ability to claim benefits. There is a caveat to this; the claimant must still submit a claim to the disability insurer during the period specified in the policy.

If you meet the test in any occupation, benefits are generally available until age 65, if you continue to meet the disability test. Most policies require the claimant to apply for CPP disability benefits, usually after 2 years. This reduces the amount the insurer has to pay, as it gets a deduction for public funds.

Consult an experienced personal injury lawyer

If employees are unsure whether their illness or injury meets the “total disability” test, Shearer advises them to contact a lawyer. “It is important to get legal advice and representation to ensure they receive the benefits to which they are entitled. The first consultation is free.

It costs nothing to seek legal advice and be pointed in the right direction. Shearer saw people emptying their bank accounts and cashing in on investments to make ends meet when they should have been on benefits.

Contact Catherine Shearer at (226) 203-1243 or by email: [email protected]