By Matt Lalande in Long-Term Disability on July 27, 2021
There’s no doubt that due to improved health management and with the betterment of medication over the past 3 years, people with HIV are living much longer lives. New antiretroviral medications can help to slow damage caused by HIV infection and help people with HIV to live longer, healthier lives and decreases the chances of developing full blown AIDS. In fact, earlier this year, new long-lasting (once a month) injectable drugs were approved by the FDA. Although HIV positive persons may suffer from chronic co-morbidities and may not live as long asa person who is HIV negative, the number of people living with HIV/AIDS in Canada who live longer is increasing each and every year.
The bad news is that persons with HIV may experience debilitating health related issues when their infection fighting cells drop and AIDS sets in. Symptoms may include loss of energy, weight loss, chronic fevers and sweats, long-lasting or frequent yeast infections, and short-term memory loss. Also and equally important, HIV stigma and discrimination can affect the emotional well-being and mental health of people living with HIV. In fact, mental health issues are among the most common problems with persons positive with HIV regardless of gender or race/ethnicity. Depression, alcohol use disorders, and neurocognitive disorders are the most prevalent mental problems experienced by HIV positive persons – which all can lead to the inability of maintaining regular gainful employment.
Remember, if you’re suffering from HIV/AIDS and are either too physical or psychologically sick to work, you may be eligible to receive long-term disability benefits in Ontario if you pay into a disability insurance policy through your employer or a private insurance plan. As long as you are paying for your premiums, and you meet the regulations for eligibility within your policy terms, you have the right to claim long-term disability benefits for HIV/AIDS.
Human Immunodeficiency Virus (HIV) is a retrovirus that attacks and damages the human immune system, preventing the body from being able to fight off infections and diseases. This occurs because HIV destroys the body’s CD4 T cells, which are the white blood cells that fight off infections. The lower an individual’s CD4 T cells are, the weaker their immune system is, and the amount of virus in one’s body is referred to as their viral load.
An average adult with a healthy immune system typically has up to 1,500 CD4 T cells per cubic millimeter, while an individual with AIDS has less than 200 cells/mm.
HIV/AIDS develops in three stages, beginning with HIV and developing into Acquired Immunodeficiency Syndrome (AIDS). If HIV is diagnosed and treated early enough, medication can delay the transition from chronic HIV into AIDS, or prevent the transition entirely. When HIV is left untreated, it takes an average of eight to ten years for AIDS to develop naturally.
The three stages of HIV/AIDS are as follows:
AIDS leaves the body vulnerable to severe infections such as cancer, tuberculosis, and opportunistic infections (infections that are controlled by the immune system and would therefore not harm someone with a healthy immune system).
HIV is transmitted between people when there is contact with an infected person’s blood or sexual bodily fluids that are contaminated with infected blood. The primary cause of HIV is a sexually transmitted infection (STI), but this is not the only source of transmission.
Other causes of transmission can include:
It is also possible for children to be diagnosed with HIV/AIDS as well, the most common cause of which is through birth or breastfeeding. Women who are HIV positive and pregnant can potentially transmit HIV to their babies if they are not taking medication, which can reduce the risk by up to 40%. It can also be transmitted to babies through premastication, which occurs when a parent chews a baby’s food before they feed it to them.
Despite the myths and misconceptions, HIV cannot be transmitted through skin-to-skin contact such as hugging, shaking hands, kissing, or high-fiving. It is also not airborne and cannot be transmitted through shared toilet seats, insects, water, drinking fountains, or sharing beverages.
The symptoms an individual may experience will depend on the stage of the virus they are in, and initial symptoms may take up to four weeks after exposure to begin. At any stage in the virus, symptoms and illness may come and go or present at different levels of intensity at different times.
In Stage 1, acute HIV infection, individuals experience is called seroconversion – which is a temporary flu-like stage that will eventually pass. However, as flu-like symptoms are common in many other types of viruses, this stage is commonly misdiagnosed or not recognized. It is also possible to contract HIV without experiencing any symptoms in the first few weeks, making it even more difficult to detect and diagnose early.
Acute HIV infection symptoms may include:
Stage 2, chronic HIV, is also known as clinical latent infection or asymptomatic HIV. If the individual is treated with medication, they may remain at this stage for a prolonged period of time without advancing to AIDS.
Depending on a person’s immune system and whether they have access to antiretroviral medication, symptoms in stage 2 can include the following:
Stage 3, AIDS, is the most severe stage of the virus. Symptoms that appear in those with AIDS include:
Individuals with advanced AIDS complications have a life expectancy of about three years, but this is more often due to the diseases, complications, and illnesses they are exposed to with a compromised immune system than the AIDS virus itself. These individuals are at a high risk of developing the following illnesses:
The World Health Organization (WHO) reports that, as of the end of 2019, 38 million people around the world are currently living with HIV/AIDS, but 19% of those people do not know they are infected.
For over 20 years, HIV/AIDS has been classified as an epidemic in Canada. Years ago, receiving a positive diagnosis could have been likened to a death sentence as medication was not available to slow the infection. Further, with little to no research or education about HIV/AIDS, and therefore no understanding of how it is transmitted, many people faced stigma and discrimination.
Now, thanks to an increase in research and development, HIV/AIDS is now classified as a lifelong episodic disability and those who test positive are able to enjoy longer, fuller lives. Medication has also allowed HIV positive individuals to prevent transmission to others. However, given the unpredictable nature of HIV/AIDS, this unfortunately does not always mean full capabilities.
Currently, Canadian criminal law contains an HIV Non-Disclosure clause that requires anyone who is HIV positive to disclose their diagnosis to a sexual partner if there is a “realistic possibility of transmission.”
There is no cure for HIV or AIDS. Individuals live with HIV/AIDS throughout their entire lives, and therefore must continue taking antiretroviral medication permanently. Without these medications, an individual with HIV/AIDS may risk facing a significant decline in health, progression to AIDS, and/or a premature death.
Thanks to modern developments, individuals with HIV/AIDS are able to live longer and fuller lives than they could in the past, but this is not without its limitations. HIV and AIDS treatment is often intensive and costly.
Treatment for HIV/AIDS consists of antiretroviral therapy (ART). ART consists of a combination or “cocktail” of three or more antiretroviral drugs. With ART, an individual’s viral load may become undetectable. This does not mean that they no longer have HIV, but it does prevent the individual from being able to transmit the virus to another person. Treatment can also help to increase an individual’s CD4 T cell count back up to over 200 cells/mm, thus reverting from AIDS back to stage 2.
HIV/AIDS comes with a high price tag in terms of health care and out-of-pocket medications or treatments not covered by OHIP or private health benefits. Antiretroviral medication, a method of pure survival for HIV/AIDS patients, is known to be expensive and can cost up to $15,000 per year. In Ontario, universal coverage for this medication is not always available. Those who are not insured privately may be able to use government programs such as the Trillium Drug Program, but will still face out-of-pocket expenses and deductibles.
As a result of these costs and the time required away from work to seek treatment and medical care, HIV/AIDS is often associated with higher levels of income insecurity than the general population.
Individuals with HIV/AIDS often face a significant amount of uncertainty throughout their lives that can have a substantial impact on their ability to work.
The symptoms of HIV/AIDS are known to be episodic and fluctuate, meaning that a positive HIV individual may have periods of good health alternating with periods of poor health. According to the Canadian HIV/AIDS Legal Network, employment levels in Canada for those with HIV/AIDS are 30% to 40% lower than those without a disability.
Further, despite the amount of education, awareness, and research that has gone into HIV/AIDS treatment globally, individuals often face stigma or even discrimination in the workplace and in society. This leads to low labor force participation and lost work productivity across all sectors.
There is no doubt that a person’s HIV symptoms may fluctuate, particularly as the disease advances with a person’s age. However, as noted above – despite care and treatment advances that have turned HIV into a chronic and manageable condition, people living with HIV continue to suffer from stigma and discrimination from their family and communities – which in turn, can significantly affect their mental health. In addition, may persons who are HIV positive often go on to develop severe clinical depression (which can affect up to 22% of the population.)
As noted above, mental health issues are also among the most common problems in the life of persons positive with HIV, regardless of gender or race/ethnicity. Depression, alcohol use disorders, and neurocognitive disorders are the most prevalent.
The long and the short is that HIV has harmful effect on both psychological and physical health, and can impair work functioning and productivity, and even render some individuals bed-ridden and unable to work – thus qualifying for long-term disability benefits.
The denial of your long-term disability benefit coverage for AIDS or HIV could be for many reasons however, a few common reasons are stated below:
1. Pre-Existing Conditions: Your policy could be denied based on a pre-existing condition exclusion.
If you are part of the group insurance policy, most of the times, a pre-existing condition will not prevent you from collecting long-term disability if you become sick. However, a problem can arise if you make a claim in relation to a pre-existing condition too soon after you enrolled in a plan. Remember – group insurance (meaning participating in a long-term disability policy offered by your employer) does not required employees to undergo a medical exam prior to coverage. Everybody who was an employee will be covered as part of the group pool and you’re guaranteed to qualify even if you have pre-existing health conditions.
However, if soon after your enrollment, you make a claim based on the medical condition that was pre-existing, your claim can be denied. Most policies contain something called a “pre-existing condition exclusion“. This means that most long-term disability carriers will not pay monthly disability benefits nor waive premiums for any disability caused by a pre-existing condition within 12 or 24 months after the applicable effective date of coverage with your employer.
Why have a pre-existing condition exclusion clause in a disability insurance policy?
Simple. Having a pre-existing condition exclusion prevents new employees from starting a new job, becoming insured, and then apply for long-term disability benefits based on a conditioning they knew about.
What is a pre-existing condition?
Pre-existing condition can mean an injury, illness, disease, or any other health condition for which you may have sought treatment within 12 or 24 months immediately before being rolled in your group insurance plan. Most disability insurance policies typically define a pre-existing condition as a condition for which you received some type of healthcare, medical advice, medical treatment, took medication for, or talked to a doctor about .
2. Complete and Total Exclusion: The bigger problem however, is that some long-term disability policies issued by Canadian insurers will specifically exclude HIV and AIDS from policy coverage. For example in a recent case, the policy specifically stated that “the insurance carrier will not pay monthly benefits, nor waive premiums for any disability that results, directly or indirectly, or was in any manner or degree associated with or occasioned by any opportunistic infections or sickness that physicians commonly associated AIDS or HIV.”
Though this long-term disability policy was quite harsh, other disability policies that we have seen do not specifically exclude AIDS or HIV from coverage, so long as one does not apply for long-term disability benefits within 12 to 24 months of the onset of coverage, or after starting a new job.
3. The issue of total disability: typical long-term disability policies in Ontario state that you need to suffer from a total disability before you can receive long-term disability benefits. The definition of long-term disability is typically divided into two scenarios.
First, to qualify benefits, you must totally disabled in that you must be unable to complete the substantial duties of your own occupation for the first 24 months after the onset of your disability.
Second, after 24 months, you must be totally disabled to performing the duties of any occupation for which you are reasonably suited by way of your education training and experience.
Now, HIV is sometimes known as an episodic disease, meaning that a person who is HIV positive may suffer uncertainty in relation to symptoms. Typically, when a person is infected by HIV, they go through seroconversion which renders them extremely sick for a period of time – which is the body developing antibodies in response to the infection. Then, depending on your overall health, the strength of your immune system, whether or not you take antireroviral medication – a person may or may not have symptoms throughout the years, during the chronic infection stage. This is when most disability carriers make the argument that despite being HIV-positive, you do not suffer a total disability that prevents you from engaging in the substantial duties of your job.
However, when in the more advanced stages of chronic infection or when somebody reaches a stage 3 infection (when the person’s immune system is badly damaged and there CD4 cell count drops) they may then become quite vulnerable to opportunistic infections and often become recurrently sick and most certainly qualify for disability benefits.
Physical symptoms are one thing, but remember, psychological pain is another. Many persons diagnosed with HIV going to develop major depressive disorder which prevents them from working. Many people go on to also suffer such depression that causes a decrease in quality of life. Also commonly observed is the onset of substance abuse. Substance use and abuse are common among HIV positive individuals. In fact, substance often serves as a coping tool for individuals with depressive symptoms in HIV, which then often results in increased depressive symptoms.
Medical journals have reported over the years that evidence is mounting that psychiatric disorders are common in persons with HIV/AIDS such as:
Therefore for many, despite not experiencing physical issues during positive episodic periods during the post-seroconversion phase, many people with HIV often suffer a wide range of mental disorders that can no doubt present is a substantial barrier to adequately maintaining employment.
An insurance carrier will often use the two-year mark to cut off your benefits and argue that by now you are able to seek out alternative employment – even if you are very sick and cannot work at all. If your benefits are denied or unreasonably cut off, you do not have to accept the circumstances and you have the right to appeal the decision. However, this is not something you should attempt alone.
For these reasons and more, it’s important to work with an experienced disability lawyer who has navigated disability claims for individuals across Ontario since 2003. Appealing a denied or cut off long-term disability claim is not simple, and a well-versed lawyer is your best shot at successfully recovering the benefits you rightfully deserve.
Throughout multiple decades of practicing disability law across Ontario, Matt Lalande has litigated, negotiated, and ghad cases against all of the largest insurance carriers in Canada. We have seen the arguments and defences insurance carriers will use and developed a multidimensional approach that brings together the top specialists and professionals in the province to prove your case.
If Your Long-Term Disability Benefits for HIV/AIDS Have Been Denied, Contact us Today: Talking to us is Always Free, And We Serve Claimants Across All of Ontario
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