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I’ve Been Terminated Before or at Two Years of LTD Benefits

You might have had some improvement in your health since you stopped working but your doctor(s) and you still believe you cannot return to work.

Your insurance company believes that you may not be able to return to “your occupation” but is of the opinion that you can do a different type of work. They keep referring to a “change in definition” in the Long-Term Disability policy.

They are also suggesting you have a right to appeal. This all sounds too confusing and you don’t know what your rights are.

For your convenience, we have provided a number of answers below to commonly asked question, but we would be happy to speak to you directly about your claim.

If your LTD has been terminated, contact us for a free consultation. Call us at (905) 286-0050 or fill out our form on this page.

Frequently Asked Questions

Why has my long term disability claim been denied? Why have my long term disability benefits been terminated?

An insurance company may deny your long term disability claim or terminate your long term disability benefits for a variety of reasons. Some of these might have a simple solution, such as making sure that they have all the necessary forms and documentation, but in other cases it might require the assistance of a lawyer to help you in your claim against the insurer in order to get the benefits that you are entitled to.

Issues may arise if you are not examined by insurance company approved doctors, you exceeded the time limitation in submitting a claim, there was a misrepresentation on the application as you had a pre-existing condition that you did not mention, there is surveillance evidence that contradicts your claim, there was a failure to have your injury or condition properly documented by your physician, you have not ‘mitigated your losses’ by maintaining your treatment regimen, or there was a failure of your employer to provide the necessary documentation.

Another common reason for a denial of benefits is that after two years of receiving long term disability benefits many policies state that you must not be able to perform the duties of any occupation you are reasonably qualified or could become qualified for (Any Occupation test) in order to continue receiving benefits. This is different from when you first receive long term disability benefits as then you need only be unable to perform the essential duties of your own current occupation before you became disabled (Own Occupation test). You will always require a medical opinion to be able to prove that you meet these disability requirements.

Similarly, insurance companies may argue that you do not have a claim or that you are partially or residually disabled (meaning you do not have access to long term disability benefits as you do not suffer a total disability which prevents you from working). Instead, you are able to work part-time or with modified tasks. It may also consider your loss of earnings as a result of the medical condition. However, the benefits you would receive would be less than if you were receiving long term disability benefits.

Watch these videos explaining the top 10 reasons why an insurance company might deny your long term disability claim (View all LTD videos):

I just received a letter from my insurance company terminating my benefits. What should I do?

It is important that you try to find out why your benefits have been terminated. Carefully reading over the letter that your insurance company sent you may provide this information. For example, if your benefits were terminated because you did not send the insurance company the proper documentation contact your insurance provider and arrange for the necessary forms and documentation to be sent to them as soon as possible.

However, if the reason for your termination is that the insurance company no longer finds that you are disabled enough as to require benefits even though your doctor maintains that you are still disabled, contact a disability insurance lawyer.

What does it mean when the insurance company advises that I have a right to Appeal its termination of my LTD benefits?

The insurance company is implying a good faith handling of your file by offering you to appeal its decision to terminate your benefits. However, this same insurance company is being asked to overturn its own decision. Ask yourself what the likelihood is that it will reverse its termination of your LTD benefits?

What is the typical success rate of an Appeal?

With more than 20 years of representing clients with long-term disability cases, I have witnessed less than a handful of successful appeals and those successes have been the usual result of administrative errors such as employer mistakes in forma completion. Appeals take away valuable time away from a lawyer’s ability to start advocating on your behalf.

When does it make sense to Appeal?

As previously discussed, unless there is an obvious clerical error noted in either of your LTD application; the employer’s statement; or, the physician’s statement, that restores a 100% certainty regarding your disability, the insurance company will rubber stamp its original decision.  Disability insurance companies remain focussed on profits for its shareholders.  Our experience is that they find any reason, no matter how weak to deny your claim.  Appeals are just another process to delay payment of another valid LTD benefit claim.

Can I be denied future LTD benefits if I fail to appeal the insurance company’s decision?

No, neither the law nor the disability policy requires an LTD disability applicant who has been denied or terminated from appealing the insurance company’s decision.  However, it is important to recognize that LTD disability appeals are different from disability limitation periods.

I think that I need to sue for disability benefits, but I have no income. What if I cannot afford a lawyer?

An Appeal period is the amount of time given by your disability insurance company following its decision to deny or terminate your LTD benefits. As previously mentioned, despite your insurer’s request to appeal its decision, neither the law nor the disability policy requires you to appeal.

A Limitation period is a strict amount of time you have commence a law suit as against your insurance company for the denial or termination of your disability benefits. Please be advised that there are strict limitations periods in contractual agreements between parties which the limitation period could be one year or more. If there is no mention of a limitation period, the Ontario Limitations Act, 2002, provides the limitation period.

Pursuant to the Ontario Limitations Act, 2002, “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”

the Limitations Act provides that a claim is discovered on the earlier of,

  1. the day on which the person with the claim first knew,
    • that the injury, loss or damage had occurred,
    • that the injury, loss or damage was caused by or contributed to by an act or omission,
    • that the act or omission was that of the person against whom the claim is made, and
    • that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
  2. the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

The courts have held that the question of when a claim is “discovered” is a question of fact; however, a disability claim is essentially discovered when the disability claim has been clearly and unequivocally denied.

In other words, a disability claim is discovered when:

  1. a claimant believes or a claimant is told by his or her health care practitioner(s), that he or she is disabled, and,
  2. the claimant has disability insurance coverage, and,
  3. those disability insurance benefits have
    • never been paid to them; or,
    • the amount of disability benefits being paid is incorrect; or,
    • the disability benefits once paid to the claimant are no longer being paid.

It is important to seek the advice of a disability lawyer as soon as your LTD benefits are denied or terminated.

Do I need a lawyer to handle my long term disability insurance claim?

It is a personal choice in deciding whether or not you would like a disability insurance lawyer to represent you and handle your claim. It is important to be aware of your rights and stay in control of your situation. When a person negotiates directly with an insurance company, he or she needs to understand that insurance companies have hundreds of years of experience in how to manage and settle losses. As private companies, they are always working for the benefit of its shareholders. If your claim is denied you may wish to consult with a lawyer who has the experience and knowledge necessary for advancing your claim.

How much will it cost to sue my insurance company?

Roger Foisy, as do most disability insurance lawyers, works on a contingency fee basis. This means that the lawyer only collects their legal fee if they are successful in your claim. In addition, Roger R. Foisy Professional Corporation offers an initial free consultation to potential clients. For a helpful explanation on how fees are determined please see my video blog How Ontario Injury Lawyer Fees are Determined.

What can I do to maximize my chances of success in filing a disability insurance claim?

When filing a disability claim it is important that you go to a doctor or a specialist who has an expertise in the medical condition that you are coping with. This way they have the ability to more accurately detail your prognosis and required treatment. It is also important that you discuss with them your job duties and responsibilities and how your condition may affect your ability to do these tasks. Consider the physical and mental demands that are required and what limitations you will face. This is important when evaluating whether you can fulfill the essentials of your own job as determined in the ‘Own Occupation test’.

When I sue the insurance company for disability benefits what do I actually sue for?

In long term disability actions you are suing for the payment of the disability benefits to which you are entitled. If you and your lawyer decide that the insurance company acted unfairly when they denied your claim you may also sue for ‘bad faith’. Your lawyer will also make a claim for pre- and post-judgment interest on the amounts claimed along with a financial contribution from the defendants which will go towards your legal fees.

What is the process for suing the insurance company?

After discussing the nature of your claim with your lawyer and agreeing that suing is the best way to proceed, your lawyer will deliver a Statement of Claim which sets out the allegations you are making against the insurance company. The insurance company in response will file a Defence and then documents from both parties will be exchanged. During this process, you will be asked questions under oath and will likely have to undergo medical assessments both with your own doctor or a specialist and a doctor chosen by the insurance company. You will have to take part in settlement negotiations and potentially mediation will occur. Going to trial will be the final step, which is usually unnecessary as the majority of all lawsuits settle beforehand.

If the insurance company agrees that I am still entitled to benefits, what are the different ways that my settlement can be paid to me?

If your disability benefits claim goes to court and is successful then you will be awarded some or all of the outstanding disability benefits that you should have, plus interest and costs, all of which is paid by the insurance company. The judge hearing your case may also order that the insurance company continue to pay for your benefits into the future as long as you are entitled to receive such benefits under your policy.

However, many cases settle on the basis of an agreed amount of money that represents a full and final payment to you for past and future benefits. This agreed amount is determined between you (the claimant) and the insurance company.

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