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Long-Term Disability FAQ


Our Hamilton  Disability Lawyers answer Common Questions

Below are the answers to common initial questions many of our long-term disability clients have when they first contact our disability firm. We hope that the information below address many initial concerns you may have, but if you don’t find the answers here, please contact us with questions specific to your case. Remember, your consultations with our Hamilton Personal Injury Lawyers are always free, with no obligation to retain the firm.

The essence of a long-term disability policy is for the insurer to pay a monthly benefit to you as the policy holder – provided that you meet the applicable definition of disability and you are not precluded from receiving disability benefits due to any applicable exclusion in your policy.

There are three types of disability insurance coverage that is offered on Ontario:

Government Plans – which include the Canada Pension Plan (CPP), employment insurance, and Worker’s Compensation (WSIB).

Group Benefit Plans – which are available through an employer or an association. Group plans offer more limited disability protection but at a lower cost to the insured and employer.

Individual Long-Term Disability Policies –  available directly from an insurance company or broker, on a client by client basis. They offer the most extensive protection but at higher cost to the insured.

Short-term disability (STD) are benefits that carry from the date of onset of diability and the application for long-term disability. STD is often offered through group employer plans. Short-term disability is meant to carry you through the elimination period. Common elimination periods are 30, 60, 90 and 120 days. After the elimination period is over, the claimant would then apply for long-term disability. STD policies are usually paid for by the employer and cover income replacement for the first 120 days of injury or illness.

There is usually a qualifying or elimination period, which can range from 90 to 180 days, during which no benefits are paid but during this period the person may cover their lost wages by drawing on a short-term disability (STD) policy, employment insurance or government sickness benefits, which may provide an additional 15 weeks of sick benefits.  STD policies are usually paid for by the employer and cover income replacement for the first 120 days of injury or illness. The longer the elimination period, the lower the disability premium, often dramatically so. The most common elimination that we see is 90 days.

This waiting period is otherwise called your elimination period. Typically most policies have a 120 elimination period. It’s during this period that you would apply for short term disability.

No, there are a myriad of policy definitions of disability, making it impossible to cover every possible scenario in any text on the subject.

The two year mark is called the “change of definition” (COD) in most disability policies. The COD is when the definition of disability changes from your “own occupation” to “any occupation”. Under the “any occupation” definition, an individual is considered disabled if they are unable to perform the duties of any job that is reasonably suitable for them based on their education, training, or experience. Most disability insurers understandably try and terminate disability benefits at the 2 years change of definition.

Under this definition, a person is considered disabled if they’re unable to perform the tasks necessary or the substantial duties of their own job. This definition is generally applied during the initial period of the disability claim, usually for the first two years – or until the change of definition occurs.

After the initial “own occupation” period, the definition often changes to “any occupation” at the 2 year mark. Under this definition, an individual is considered disabled if they are unable to perform the duties of any job that is reasonably suitable for them based on their education, training, or experience.

Unfortunately, many long-term disability insurance policies have exclusions and limitations that may prevent you from collecting long-term disability benefits. If you read the fine print in your long-term disability policy, you will no doubt notice a provision entitled “exclusions”.   Anybody who owns or is considering purchasing it should be aware of its exclusions. What are some of the typical disability insurance exclusions found in long-term disability policies?

  • Alcohol and Substance Abuse – many policies many policies do not have coverage for absenteeism because of substance abuse.
  • Self Inflicted injuries or illness – if you have hurt yourself or caused yourself to be sick you may be declined long-term disability insurance.
  • Medical or surgical care that is not necessary – if you “elect” surgical care that is not vital to receive, you can be denied long-term disability benefits.
  • Committing or attempting to commit an assault – assault will more likely than not void will cause you to be declined benefits.
  • Being involved in or committing a criminal act – will probably void coverage.

In considering own occupation, if the claimant is able to perform only minor functions of his or her job, the claimant is nonetheless totally disabled.

The answer is that it depends on your policy wording. Certain Long-term disabilities policies may provide, for example:

Benefits equal to:

    • 65% of gross monthly earnings;
    • 75% of net monthly earnings;
  • Benefits that last:
    • up to age 65; or
    • for only fix years.
Reductions may apply so that your total income from all sources does not exceed a certain amount. For example, the policy provision may state that the employee’s total income from all sources is not to exceed 85% of your pre-disability earnings if the benefit is taxable or 85% of the pre-disability net earnings if the benefit is non-taxable.
Benefit amounts may also be reduced by other benefits that a person receives or in entitled to receive from sources specified by the policy wording
 You should be aware of deductions that may be made from an LTD benefit amount based on policy wording. Some typical sources that may reduce the LTD benefit amount include benefits the employee/plaintiff receives or in entitled to receive from:
  • Canada pension plan (CPP).
  • Workers’ compensation (WSIB) or similar coverage.
  • Group, association or franchise plan.
  • Retirement or pension plan.
  • Earnings or payments from any employer, including severance payments and vacation pay.
  • Self-employment income.
  • Government plans, except those that are excluded such as EI benefits.

You should NOT file an internal appeal. Instead, call our Hamilton disability lawyer Matt Lalande for your free consultation. Matt is a well known disability lawyer in Canada who represents people all over Ontario – and Canada.

If you’ve never hired a disability lawyer the process is certainly not easy. Our market is no doubt inundated with radio, television and billboards advertisements. You might be wondering if these lawyers are any good.  The best way to hire a disability lawyer is to hire by referral and hire local. Also, speak to friends and colleagues in your social circle. The absolute best way to hire a lawyer is through some sort of referral – or in the alternative, hire local in your own community.

Yes! All of our long-term disability consultations are 100% free and without obligation.

You can generally see our disability lawyers within one (1) to three (3) days.

Yes we do.  We are happy to meet in office or we also offer consultations by Zoom, Google Meet & Microsoft Teams – whichever is easiest for you.

Yes, we do Lalande Personal Injury Lawyers charge clients on a contingency-fee basis – meaning that you only have to pay if we win your case. Our fees are charged in the form of a percentage of the settlement or verdict amount we obtain on your behalf in Court.

The maximum contingency fee that our firm charges on new cases as of July 1st 2021 is 30% + HST.

Never – we NEVER ask our clients for money upfront. Lalande Personal Injury Lawyers operate on a contingency fee basis, which means you only pay us if and when we win your case. Our fee would come in the form of a percentage of the settlement or verdict amount we obtain.

Yes, most policies have a requirement that the insured apply for CPP disability benefits and, in some cases, also require the insured to appeal a denied claim. In addition, there may be a provision for an offset for CPP disability benefits received by the insured.

The deductibility of severance packages depends on the policy wording for the most part. If the wording is clear and unambiguous, you will have to look no further, but that is not always the case. Where the wording is not clear, consideration must be given to the nature of the severance package.

Yes, some policies contain offsets for amounts received through WSIB claims.

In Richer v. Manulife Financial, 2007 CarswellOnt 1713 (Ont. C.A.), the insured’s policy provided for an offset for amounts he was entitled to receive through a WSIB claim. The insured plaintiff had made a WSIB claim but it had not yet been resolved. Entitlement to receive payments was not dependent on an application for compensation being approved. Manulife was entitled to reduce the monthly benefit payable to the insured under the policy by the amount of WSIB benefits to which he would have been entitled had he not elected to proceed with an action. See also Robert Wilken v. Sun Life Assurance Company, 2017 CarswellOnt 19517 (Ont. C.A.), where the court noted, at paragraph 3:
“The plaintiff’s voluntary decision to make a retroactive election, foregoing WSIB benefits to pursue a tort action, effectively would deny the insurer its contemplated and permitted offset, thereby elevating the insurer’s relevant coverage obligation to a ‘first payor’ status that obviously was not intended.”

Yes. The case law is clear that a person can still be considered totally disabled even if they return to work for a short time during recovery, or after benefits have been terminated by the insurer: Ferguson v. UNUM Life Insurance Co. of America, [1998] B.C.J. No. 531 (B.C. S.C.); Nicholas v. Metropolitan Life Insurance Co. of Canada, 2003 BCSC 506 (B.C. S.C.); Hood v. Metropolitan Life Insurance Co., [1993] S.J. No. 227 (Sask. C.A.). The idea in these cases is that plaintiffs should not be prejudiced or disadvantaged from receiving benefits by attempting to work again. See also Tanious v. Empire Life. Judge Brown notes that the plaintiff’s tasks and abilities cannot be considered sensibly in a piece-meal fashion. As stated earlier, what matters is that the insured is unable to perform substantially all of the duties of that position.  In this case, the plaintiff had been told by her family physician earlier that she should not be working; but in what was an exercise in obvious poor judgment, ignored the advice and continued to work, fearful of losing her position. Just because the plaintiff was able to perform some of her duties, does not mean she was able to perform substantially all her duties on a continued and satisfactory level. In other words, going through the motions of some tasks when the plaintiff clearly should have ceased work on advice of her physician should not be to her prejudice.

Judge Brown reviewed this in Tanious v. Empire Life. A plaintiff’s suitability for any occupation under a Policy was referred to in Plouffe v. Mutual Life Assurance Co. of Canada, 2001 BCSC 900 (B.C. S.C.), Slade J. analyzed what a reasonable occupation would be under the “any occupation” definitions of total disability:
The test for disability has been held to be a subjective one, related to the background and education of the disabled person in question: Labelle v. Great-West Life Assurance Co.[1986] 17 C.C.L.I. 173 (B.C.S.C.).
 In Labelle, Proudfoot J. (now J.A.) construed an “any occupation” definition of total disability with these qualifying words:
Notwithstanding this all-embracing definition, this does not mean that the person is not entitled to the benefit if he is so sick that he can take on only trivial or inconsequential work, or work for which he is over- qualified, or work for which he is completely unsuited by background.
A person is considered not to be totally disabled from engaging in ‘any’ occupation if his condition would enable him to enter into an occupation reasonably comparable to their old occupation in status and reward, and reasonably suitable in work activity in light of their education, training and experience.

No. Being able to perform one or more important aspects of the occupation separately will not necessarily disqualify the insured from coverage; they do not need to be totally helpless. What matters is that the insured is unable to perform substantially all of the duties of that position: Paul Revere, at 545 – 546.

Yes, but speak to your accountant. Legal expenses paid to collect or establish the right to reinstatement of disability insurance benefits or the right to a lump sum disability insurance settlement of past and future benefits are deductible for tax purposes. Where a claimant incurred legal expenses, those expenses are deductible from the settlement amount as being reasonable necessary expenses incurred to realize the settlement that was achieved. Without the legal expense, the settlement amount would not have been realized by the claimant. Where the lump sum disability insurance settlement between the claimant and the disability insurer does not specify the amount of legal costs, the Tax Court of Canada will consider the evidence of what legal expenses were incurred.

Although most disability cases do settle, there is always a chance that you may have to go to Court. If your case does not resolve and we need to try the case, you and your loved ones will be called as witnesses to give evidence in the case. Be rest assured that we prepare our cases from day one like they will be tried by judge or jury.

Yes, Matt Lalande has assisted with and has tried dozens of judge and jury cases. There is no need to worry if your case needs to go to trial.

We mostly update our clients with major events. We always ask our clients to try and remember that we are  dealing with the medical system, hospitals, doctors, specialists, pharmacies, insurance companies, insurance adjusters, other lawyers, other offices, and other schedules. From requesting and sending medical records, dealing with the Courts, or simply waiting for a response on a letter working its way up the chain to an insurance adjuster… things take time.

Of course you can. You can email or call as often as you wish. We are always happy to update you on the progress of your case.

It depends if your case is loaded down with extra-contractual arguments – meaning that you are seeking aggravated or punitive damages for the way your disability carrier’s conduct itself during the handling of your claim and administering.  Many disability claims can be mediated prior to discoveries. If the case seems like the burden of proving disability creates risk on the insurer, then there is a good likelihood your case could settle around the year mark.

The most cited test to determine whether an individual is totally disabled was stated by Laskin C.J. in Paul Revere at 546:
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. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure; hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease all work, he is totally disabled within the meaning of health or accident insurance policies.
This test has been consistently followed in B.C.: Asselstine v. Manufacturers Life Insurance Co., 2005 BCCA 292 (B.C. C.A.); Halbauer v. Insurance Corp. of British Columbia, 2002 BCCA 5 (B.C. C.A.); Eddie v. UNUM Life Insurance Co. of America, 1999 BCCA 507(B.C. C.A.); Mathers v. Sun Life Assurance Co. of Canada, 1999 BCCA 292 (B.C. C.A.), leave to appeal to ref’d (2000), [1999] S.C.C.A. No. 334 (S.C.C.).
228      Being able to perform one or more important aspects of the occupation separately will not necessarily disqualify the insured from coverage; they do not need to be totally helpless. What matters is that the insured is unable to perform substantially all of the duties of that position: Paul Revere, at 545 – 546.

Typically, a lawsuit must be commenced within two years of the date the benefits were first denied (and NOT denied by appeal) unless otherwise specified by the contract. Determining when the limitation period begins to run is not always obvious and often the principle of discoverability complicates matters. There are different reporting times regarding the onset of your disability stated in each and every contract however.



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