Disability Lawyers Represengting Firefighters Province-wide

By Matt Lalande in Long-Term Disability on August 12, 2020

The following is a reproduction of Matt Lalande’s contribution to Toronto Firewatch Magazine – a magazine distributed the Toronto Professional Fire Fighters’ Association

The Non-Occupational and Occupational Disability Coverage Mix – Where to Turn?

Recently, I had the opportunity to reconnect with my long-time hometown friend and colleague, Rob Hyndman, former president of the Ontario Professional Firefighters Association, to chat about how firefighter related occupational and non-occupational disability matters. Rob stressed the absolute importance of utilizing a firefighters’ respective associations throughout the WSIB process.  He also stressed that:

“…firefighter locals and their respective parent organizations have a very comprehensive skill set when it comes to claim adjudication.  The Toronto local to whom you’re writing the article, for example, are leaders in the field and in my opinion, it is imperative for the firefighter to bring them into the process as soon as possible to make sure nothing is left on the table.”   – Rob Hyndman, former president of the Ontario Professional Firefighters Association

Rob could not be more right.  Firefighter locals and association committees are extremely experienced with the necessary adjudication of occupational claims – however – the disability issue can become complex when occupational related disabilities, presumptive or not, become entwined with non-occupational or pre-existing medical issues.  In my experience, when this type of situation occurs, the firefighters’ respective associations will (assuming claim denial) adjudicate claims with the LTD carrier up to when a Court action is required, and then refer the case to an appropriate disability trial lawyer to assist with prosecution.

The Increased Risk of Disability and Disease

Because of the strenuous nature of their work, firefighters are often exposed to a number of different ergonomic, physical, and chemical workplace hazards, which can no doubt have long-lasting effects on a person. In addition, firefighters can also be repeatedly exposed to traumatic events and life-threatening perils which place them at an increased risk for developing clinically significant mental health issues such as acute stress disorder, PTSD, compassion fatigue, burnout syndrome, major depression, anxiety disorders, sleep difficulties, substance abuse, relationship breakdown, and suicide.  Even more significant – these physical and mental health occupational related issues can be compounded, aggravated, or exacerbated by pre-existing psychological or physical issues, making it very difficult to determine whether or not disabilities suffered are workplace related or not.

A Disability Example

Take PTSD for example. For firefighters suffering from PTSD, it’s symptoms can be so far reaching and debilitating that it’s simply not possible to work while they are struggling with serious symptoms and related complications.  Thankfully, the PTSD paradigm has shifted on how the disorder is viewed and understood.  The DSM-V (the psychiatrist bible) finally shuffled the deck and removed PTSD from the “anxiety disorders” category into a newly created chapter called “trauma and stress-related disorders.” Believe it or not, the DSM had considered PTSD as a type of anxiety since 1980. Also, a growing number of Provinces and States, including Manitoba, Saskatchewan, Ontario, Texas, Vermont, Louisiana, Minnesota, and Connecticut have passed legislation to amend worker’s compensation for first responders suffering from PTSD. In Ontario, it’s now well known that first responders no longer have the onus of proving that they developed PTSD from their occupations in order to receive benefits – rather, the disorder is “presumed” to have risen out of and in the course of his or her employment, unless the contrary is shown and certain diagnostic criteria are met.

What happens if the contrary is shown, or a disorder is considered non-occupational?

It is certainly not uncommon in my practice to see injuries, whether physical or psychological, be considered non-occupational. It is also not uncommon to see a person suffering from an asymptomatic, pre-existing condition become symptomatic due to trauma on the job – or even more common, a pre-existing condition that is exacerbated by trauma.  Perhaps there was pre-existing non-occupational major depression, bi-polar disorder, or a substance abuse issue. Perhaps the individual is going through a stressful divorce, a death, has developing MS, suffers from an autoimmune disorder, or has developed a chronic respiratory disease that was aggravated by underlying asthma.

In my practice, I recall assisting a firefighter who was almost killed after he was hit by an SUV while riding his bicycle. He suffered an open femur fracture, tibial plateau fracture, and terrible PTSD from the trauma of almost being killed.  Four years later, his knee was repeatedly giving out while on the job. The man, at 49, underwent a total knee replacement which became fraught with medical complications.  On the job stressors intensified his PTSD symptoms.  Because of the pre-existing conditions, the issue was considered non-occupational, even though his pre-existing conditions were clearly aggravated by on the job stressors.  Workman’s compensation denied coverage, and he was left to apply for and be denied long-term disability that was forced to be litigated.

Turning to your Long-Term Disability Policy – Understanding the Basics

Toronto firefighters are provided with disability policies as part of their comprehensive group benefits.  Disability insurance contracts provide benefits to replace lost income in the event that an insured becomes disabled and he or she meets the applicable policy definition of disability.   LTD policies generally cover any type of injury or illness that prevents the policyholder from being able to work (where the claim is not covered by WSIB). The qualifying period (or waiting period during which no benefits are paid but the person may cover their lost wages by drawing on an STD policy) for Toronto firefighter policies is 180 days from the date of the onset of injury or illness.  After 180 days, you can apply for LTD. The duration of coverage is until you reach 65 years of age so long as you continue to meet policy requirements. The amount of benefit is a percentage of your gross monthly earnings.

The LTD policy will contain a definition of “Total Disability,” which defines the circumstances in which disability benefits will be paid.  Typically, there will be two separate definitions of total disability:  “own occupation” coverage and “any occupation” coverage.

With the own occupation coverage (“own occ”), a person will be found totally disabled if he or she is prevented from performing the substantial duties of his or her own occupation as a firefighter.  Coverage is available even if you can perform menial duties of your job. Typically, the “own occ” coverage lasts for 24 months. Because the contractual test for the “own occ” period is less onerous, and the insurance company’s potential exposure is lower, insurers will often pay benefits during the “own occ” period.  At the 24 month mark, the test changes to a more difficult definition, which requires the individual to be disabled from performing any occupation for which he or she is reasonably suited (language like “qualified, or could become qualified for, by reason of education, training, or experience”). This is known the any occupation “any occ” period.  Insurers typically resist paying benefits into the “any occ” period. During the latter period, the potential payout, especially for a young person, could be significant.

When you apply for long-term disability, you need to be ready and understand the process. You need to prove your disability.  Don’t just submit your GP records – obtain and submit every clinical record you can from every doctor and specialist you have seen. Go over and above with medical records.  Ontario doctors must retain medical records for 10 years. Go all the way back – the more evidence the better.  Meet all your deadlines, don’t become the star in unfavorable surveillance video which contradicts your complaints, apply for CPP Disability, know how your policy defines total disability, and always follow recommended treatments. The key to getting approved is going over and above. Remember – It’s easier to pass a test when you’ve already seen the questions.  Make sure to educate yourself or speak to a disability lawyer on what to expect and how to qualify before you apply for your disability benefits – and avoid the possibility of a wrongful denial.

A special thanks to my friend and colleague Rob Hyndman for his time and contribution to this paper