Howard Levitt: Long-term disability benefits are there for a reason

Insurers will almost always capitulate and settle once a lawyer is hired to champion the claim

For the general population, a disability is seen as a red flag for leading a productive “normal” life. It is considered a barrier to entry for many jobs, physical spaces and relationships.

But disability is not uncommon. Twenty-two per cent of Canadians age 15 and up report having one or more disabilities. Physical pain, mobility and mental health issues compose the bulk. This has profound implications for society. Consider that, as the severity of disability increases, employment decreases. Also consider that disability increases with age.

With an aging population, Canada will soon be relying more heavily on a smaller, younger workforce. Mental health is the highest reported disability plaguing youth today. Pandemic isolation has strained that, not only across tomorrow’s workforce but through much of the population. The government’s $3.8 billion commitment to mental health cannot be implemented quickly enough.

Aside from government programs, workers can find relief in disability policies. Most employees have short or long-term disability, or both. For those without short-term disability, the federal government offers 15 weeks of EI Sickness Benefits to bridge employees to most long-term disability plans. Disability policies offer time, space and typically two-thirds of wages to workers in need of convalescence. Not everyone will get better, but most will, and are often more productive upon their return to gainful employment.

Statistics Canada revealed that 31 per cent of people who are severely disabled continue to work. We would like to think that these employees could work efficiently as a result of appropriate accommodation by their employers. Sadly, many lack this, which hinders their performance and recovery. We know from our disability practice that most disabled employees continue to work through severe pain. They return home exhausted, unable to enjoy what most abled people take for granted. The 78 per cent of us without disability should count our blessings daily.

Considering the adverse effects disability has on other facets of life, the employee may qualify for LTD benefits. We often ask why clients waited so long before commencing a disability leave or seeking legal advice. Here are a few common responses:

Stigma and stoicism are frequent barriers to seeking help. When we remind people that they are not alone and disabilities are quite common, they are more inclined to take action. Campaigns are helping to de-stigmatize mental health and other disabilities. We often hear “I’ve never missed a day of work in my life,” or “It’s not like me to take a leave.” Most acknowledge that if they continue down this path without seeking help, the consequences could be far worse than a bruised ego. Some are motivated by knowing that if they do not use their benefits when they need them, they will have wasted thousands of dollars in expensive LTD premiums deducted from their paycheques.

Some employees think that because the insurance company denied their claim or appeal, a legal claim with a lawyer will not succeed. This could not be further from the truth. If the employee’s doctor believes the employee is unable to work and the employee is following a reasonable treatment plan, insurers will almost always capitulate once a lawyer is hired to champion the claim. Insurers like to control the claims process. After a denial, they delay further through a protracted appeal process, often decided by the same agent who initially denied the claim. Rarely are appeals successful. Our practice is to commence a claim immediately after a denial to reduce delay and take back control of the process.

Some believe hiring a lawyer is cost prohibitive. Most, if not all, disability lawyers, like us, offer contingency fee arrangements that do not require any payment. The law firm funds the entire legal claim. If the firm does not obtain a settlement or award, the client does not pay any legal costs. The Law Society of Ontario has implemented changes effective July 1, 2021 to make these arrangements more accessible and transparent.

Clients are unfamiliar with the legal claim process. They worry the matter will take years to resolve or they will have to testify in court.  Less than one per cent of disability cases see the inside of a courtroom. The client does not do any heavy lifting. The law firm collects all the necessary medical records and prepares the legal documents to marshal the claim to mediation, which usually occurs within six to 10 months of retaining a lawyer. Over 80 per cent of claims settle.

Most people want to work productively. Some may not be able to ever work again, in which case LTD coverage may be available until age 65.

Using LTD benefits should not be a last resort. If you are part of that 22 per cent of the Canadian population reporting a disability, LTD benefits are the ideal tool for your recovery.