How does COVID-19 Impact My Long Term Disability Benefits?

• 
  Catherine Shearer
  Partner

The short answer is that it doesn’t. If you are still employed and have to take an extended leave from employment due to illness or injury your benefits will still be available to you.   You will still need to meet the policy criteria such as the waiting period and the test for disability.

Each policy will have a different qualifying or elimination period commonly referred to as the waiting period.   These can range from 30 to 90 days but can be longer. During this time the claimant must continue to meet the test for disability however they are not entitled to payment of benefits until the time period has expired. Once the time period has expired and they remain disabled only then will benefits be considered.

During the waiting period a claimant can seek different forms of benefits such as short term disability benefits or government assistance such as EI sick benefits.

In most policies the test for disability will be based on a total disability of the employee to complete the duties of their own occupation for the first 24 months. If disabled after that the employee must be totally disabled from engaging in any occupation.

Each policy will have different wording when it comes to the meaning of total disability. While the language may shift from policy to policy it is generally their own occupation for a certain period of time, usually two years, then a change of definition to any occupation.

The terms “total disability” and “ any occupation” seem very daunting. The strong language is no doubt used to deter claimants. Most policies will state something to the effect that the insured must be unable to perform the material and substantial duties of his or her particular occupation to be considered “totally disabled.” It does not mean that the insured is catastrophically impaired or utterly helpless.

After the change of definition it is the insured’s inability to engage in any gainful occupation that the insured is reasonably suited for based on his or her education, work experience, and other individualized factors that will qualify the insured as totally disabled. Again, the language does not actually mean any occupation at all, it must be viewed in the context of the insured’s education, training, experience and remuneration.

This is a subjective test that has be interpreted by the courts with flexibility. In Bacon v. Saskatchewan the Court commented that in order to satisfy the policy definition that one is unable to work at any reasonable occupation, which is defined as a gainful activity for which the employee is, or may reasonably become, fitted by reason of education, training or experience, a number of factors ought to be considered. The plaintiff will be considered under the plan to be totally disabled if she is unable to substantially perform any occupation that is:

• (a) neither consequential or trivial; and
• (b) similar in nature and remuneration to her former occupation; or
• (c) similar in remuneration to her former occupation and of such a nature that she can become capable of performing it substantially within a reasonable time and with a reasonable effort and expense.

The determination of what is “similar in nature” and what is a “reasonable time, effort, and expense”, is assessed from a consideration of the previous education, training and experience of the plaintiff and her previous occupation.[i]

It can be difficult to determine if you meet your policy’s tests for disability or if you have satisfied the waiting period. For additional information please do not hesitate to contact me shearer@mckenzielake.com or @guelphinjurylawyer

This article was written by Personal Injury Lawyer Catherine Shearer, working from both our Guelph Ontario and London Ontario offices.

[i] Bacon v. Saskatchewan (1990), 48 C.C.L.I. 166 (Sask. Ct. Q.B.) para 45-49