Denied Disability: Your adjuster says you can work?



Your disability adjuster says that you can do so “some” type of work, therefore you do not suffer a total disability and should not be paid any long-term disability benefits. What’s the deal? Generally, you will still be deemed totally disabled if you are only able to take on trivial or inconsequential work, work for which you’re over qualified or work for which you are completely unsuited for by way of your background. What you are doing is comparable to your pre-disability occupation is an issue to be determined on a case-by-case basis. The the best way to think about this is in “extremes”. For example, a busy highly skilled plumber would not be forced to greet people walking into a department store. An eye doctor who can only work as a parking attendant will be considered totally disabled from any occupation.

What if am working but making less money because of my disability?

Again , in most cases, the salary of an alternative occupation must be somewhat comparable to your pre-disability occupation. Remember, in most circumstances an alternative occupation should be reasonably comparable to your pre-disability occupation. Salary is only one of the factors to be considered. The fact that income from your “substitute occupation” might be less than your former job does not really mean that you are disabled under the “any occupation” definition of disability. There are other factors involved if your policy does not mention anything about it.

Also, there are some disability policies that list specific salary “thresholds” which would mention what you can earn at an alternative occupation in order for you not to be considered totally disabled from “any occupation”. Disability Insurance Law in Canada tells us that when an insurance policy is silent, the rule of thumb should be that your alternative job should pay at least 60-66% of their pre-disability salary for you to be considered totally disabled. A seminal case called Brooks v. London Life tells us that the fact that the income from a substitute occupation may be less than that of the former job does not of itself mean that the substitute job fails to meet the total disability test; it may, however, it may constitute a factor to be considered when applying that test.

What if I can only do work of insubstantial nature?

If the new job you are doing is considered insubstantial, you will normally not be disqualified from receiving your long-term disability benefits. For example, in the case of Walls v. Constellation Insurance – a construction project manager was found to be disabled pursuant to his long-term disability policy (from any occupation) when pain from a heart surgery scar made it too hard for him to perform any type of intellectually challenging work on a full-time basis, even though he was able to golf and drive a car. He needed to avoid stressful situations.
“Any occupation” as defined in most long-term disability policies usually requires that the insured person be prevented from engaging in any occupation or perform any work for compensation or profit. However, with all this in mind, the situation should be considered on a case by case basis.

The fact that you may be able to work at a comparable type of job but make less money, or work less hours, or whether or not you can perform some work of an insubstantial nature are all factors that should be determined when considering whether or not you are totally disabled. A Court will look at your physical condition, your age, your medical condition, your education, your work experience, any courses that you have taken, your functional tolerances, your physical intolerances, your emotional and mental intolerances and your day to day activities to determine whether or not you would be able to succeed in some type of work activity.

Overall, we would say that a person is totally disabled from engaging in ‘any’ occupation if his or her condition prevents him or her from entering into an occupation reasonably comparable to his or her old occupation in status and reward, and reasonably suitable in work activity in light of his or her education, training and experience – but every case should certainly assessed and/or decided on their own facts.