In the most recent Canadian Survey on Disability, one in seven people aged 15 years and older reported having a disability. This represents 3.8 million Canadians whose everyday activities are limited as a result of a long-term health condition or health-related problem.
These disabilities, most commonly related to illnesses and injuries involving pain, flexibility and mobility, can rob people of their independence and force them to stop working.
What the statistics don’t show are the number of Canadians whose short- and long-term disability claims have been denied by either insurance companies or employers.
Lawyer Sarando Matheos of Wirsig Matheos, a Surrey law firm with over 20 years of experience in litigating civil claims involving the denial of benefits and coverage, says many British Columbians are forced to take legal action to fight for the wage replacement benefits to which they should be entitled. Disability benefits typically equal two-thirds of regular earnings.
“A lot of people fighting their insurance companies feel like no one is listening to them. It seems only when they have representation that these insurers start to pay attention,” he said.
If you have been denied a disability claim, here are four things you need to know:
1) Disability claims are not personal injury claims
While personal injury cases share some similarities with disability claims, including physical and emotional pain, the legalities are very different.
Personal injury claims centre around tort law and proving negligence, where a person must be found “at fault” and where you can make claims for pain and suffering. Denied disability claims are often contractual disputes focusing on whether you meet the eligibility requirements to qualify for income replacement set out in your disability benefit policy if you become disabled.
It sounds simple, but in reality it’s anything but.
These contractual terms, drafted by legal professionals, can be extremely complicated, and confusing for the average person to negotiate and understand. Especially when you are suffering with a disability that has left you cognitively or physically impaired.
Bringing in an experienced disability denial lawyer who understands the policies can give you a huge advantage in your case, says Matheos.
“Unfortunately a lot of times people with a valid claim will give up or walk away because it’s so complicated. They just don’t have the fight in them,” he said.
2) Having a disability and meeting criteria are separate things
Many disability claims are denied when insurers say that there is a lack of objective medical evidence to support that the person is unable to work. However, there are many illnesses that cannot be confirmed through “objective” diagnostic testing such as blood tests, x-rays, MRI’s etc. We often refer to these as “invisible” illnesses such as depression, anxiety, chronic pain, chronic fatigue syndrome and fibromyalgia. The fact that these illnesses can’t be confirmed by objective measures doesn’t make them any less real or less disabling.
It gets even more complicated. Sometimes proving the disability is not enough. Most policies require that the disabled person be under the regular care of an appropriate physician. Figuring out what that means can be challenging. Is a person with a psychiatric illness under the care of an appropriate physician if they only see their family doctor once a month? An insurer may take the position that an appropriate physician for this condition is a psychiatrist. In these circumstances, an insurer may choose to deny the claim. However, what happens if the person lives in a rural area with little or no access to psychiatrists? Navigating seemingly simple terms of the contract can be very challenging.
“They don’t deny that you have the disability, just that you don’t meet the criteria,” said Matheos, adding that most people would not be aware of what the eligibility requirements are as in most cases they have not even seen the policy.
3) The clock is ticking
Filing a disability claim – and fighting a denied claim – is a race against time.
It starts with the initial claim. When you become disabled, there is only a finite window of time under the policy to file “proof of claim” Complicating the matter is that most people don’t have a copy of their policy and are not aware of the time limits but the onus is on claimants to live up to them.
While the insurance company may invite claimants to appeal a denial, under British Columbian Law you only have a very limited time within which to sue for non-payment of benefits. This is called a “limitation period”. Calculating the limitation period can also be complicated as some circumstances of a particular claim may shift the time off of the standard time frame. If you are concerned about a limitation period you should consult with a lawyer who practices in this area immediately. An important fact to keep in mind is that the time limit to sue does not stop running during the “appeal process” offered by the insurance company. The clock continues to count down even during the insurance company’s multiple appeal processes.
“In some cases, people exhaust their appeals and then seek a lawyer, at which point it may be too late to sue. When your claim is initially denied is when you should seek legal advice,” said Matheos.
4) You can consult with a lawyer free of charge
A hidden consequence of disabilities that keep people out of the workforce is the devastating effects they have on family finances. Without a paycheque coming in, many struggle to make ends meet. This also affects their ability to fight a denied disability claim over the concern it’s not financially viable to hire a lawyer to assist in proceedings.
But that thinking can snowball into problems for someone who decides to fight the case themselves instead of retaining representation from someone who understands the system, says Matheos.
“The problem is they’re really advocating on their own, being their own lawyer, and that rarely works out well in circumstances where the individual is physically and cognitively compromised by their illness or injury,” he said.
Many insurance denial lawyers will offer a free initial consultation to discuss the legal options available, the claim background and the viability of winning the dispute.
Matheos says “our lawyers can make a real difference in these peoples’ lives. They are tired of fighting their illness, tired of fighting the financial crisis they face and tired of fighting the insurance companies. We can take on the fight on behalf of our clients and more often than not achieve very favourable outcomes for them.”