kotak: what happens when returning to your job after a disability doesn't work out?
4 minute read
everybody wins when a once-disabled worker recovers to the point that they feel ready to go back to the workplace — as long as their doctors agree it’s safe. getty
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if you have been receiving long-term disability (ltd) benefits after an illness or injury, and decide to attempt to return to work, you need to be aware of the potential repercussions should things not work out as hoped.
everybody wins when a once-disabled worker recovers to the point that they feel ready to go back to the workplace — as long as their doctors agree it’s safe — after a period of receiving ltd benefits. not only does the employee resume receiving their full income, but the insurer no longer has to provide benefit payments.
understanding the recurrent disability clause
however, the return-to-work attempt could prove premature if it re-aggravates the insured person’s injury or prompts a relapse of their medical condition. recoveries don’t always progress in a straight line and setbacks are to be expected — which is why most ltd policies contain what is known as a “recurrent disability” clause.
the provision allows ltd recipients to skip the waiting period that normally comes with a fresh claim if they’re forced back off work because of the same medical issue within a certain period — generally six months.
depending on specific terms of your policy, you may have to start from scratch if the period of work between benefit payments lasts for longer than six months, or if you sustain a fresh or unrelated injury.
according to a report from statistics canada, of the 6.2 million persons with disabilities aged 15 years and over, 2.4 million (39 per cent) experienced conventional continuous limitations whereas 3.8 million (61 per cent) experienced some type of disability dynamic.
in our law office, too often we see that many insurers fail to live up to their end of the bargain after a failed return to work, seizing the opportunity to deny or terminate a worker’s benefits.
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a case study
consider this recent case. our firm represented a 41-year-old man who worked at an ontario department store in a lawsuit filed against his disability insurance company.
jim (not his real name) had suffered from vertigo — which typically manifests as dizziness or a sense of spinning that affects balance and coordination — long before the condition became debilitating and affected his work as a salesperson. however, several years ago, the symptoms intensified, as daily bouts of migraine, vomiting and insomnia began interfering with his ability to carry out his duties.
for jim, the onset of more serious symptoms was compounded by severe anxiety and depression, and his claim for long-term disability was approved by the group insurance provided through his employment.
but when his benefits were terminated after two years, he became the victim of a change in the test for coverage that happens under virtually all long-term disability (ltd) group policies after 24 months. after two years, many policies state that the insured person must prove that they are totally disabled from employment in “any occupation” for which they are “qualified or may reasonably become qualified by training, education or experience.”
new assessments may be required, the main purpose being to boost an insurer’s case for termination by purporting to show that claimants have other options for a return to work.
jim was unable to complete an assessment after suffering a vertigo attack during the session that caused him to fall off the furniture. incredibly, the insurer’s report managed to omit this critical detail. when jim came to us for help, we had several concerns about how his ltd benefits were terminated, and filed a lawsuit on his behalf against the insurer.
a report from jim’s family doctor laid out his various ailments and the medication he had taken to manage these medical issues. we also gathered records and opinions from medical providers about other treatments jim had pursued over the years. the insurer agreed to our request for early mediation, and we prepared him on how to communicate the impact his vertigo and related medical issues had on his day-to-day functional abilities.
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jim gave a powerful account of his struggle over the past few years, and reached an agreement with the insurer to provide a significant amount of money to compensate for the termination of his benefits.
the settlement allowed jim to focus on his health and recovery instead of financial concerns — which is the outcome every employee deserves.
nainesh kotak, is the founder of kotak personal injury law, a firm focusing on protecting their client’s rights to justice and obtaining the compensation their clients deserve. he also serves as the chair of the long-term disability section of the ontario trial lawyers’ association.
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