How to convince your disability insurance company that you are disabled and entitled to disability benefits.

Common Story

You purchase long term disability insurance hoping never having to use it. You pay your premiums each month and honor your commitment to the insurance company. You filled out your application for insurance truthfully and trust that the disability insurance will be available if ever needed.

One day, you become disabled. You fill out the application for long term disability benefits, you send it to your insurance company, you answer their questions and provide them with all the medical records they ask. You wait. It takes forever for your insurer to respond. You are treated badly.

The insurance company denies your claim and your life is in turmoil. You have no income and are unable to work. You don’t know how you will be able to pay the rent or your mortgage, pay for medical treatment or feed your kids. You fear losing your home. You turn to friends, family and credit to support your living expenses. This causes you stress and anxiety and your disability worsens as a result. You feel desperate and alone.

If this sounds familiar, welcome to what thousands of people have to go through with their insurance company. You are not alone. If you have been denied long term disability insurance, you have rights and we can help you win your long term disability case.

What do you need to prove when applying for long term disability benefits?

Assuming you paid your insurance premiums, most policies of disability insurance will require you to do a few things when disabled:

1. Complete and submit an application for benefits to your insurer.
2. Provide medical records supporting your claim that you are disabled.
3. Meet the definition of “disabled” as outlined in the policy of insurance.

Most policies of insurance will define “disability” triggering insurance coverage. Most policies of insurance will have two definitions of “disability” contained in the policy. One definition (sometimes called short-term disability) is also called “own occ”. This means own occupation and in that case, you must be unable to do the usual tasks of your own occupation by reason of your disability. The other definition is often referred to as long-term disability or “any occ”. Any occupation usually means you are unable to work at any job that you are qualified to do by reason of your education, training or experience.

Typical definitions found in many disability policies of insurance are similar to this example:

Totally Disabled
An Employee is Totally Disabled if he/she is in a continuous state of incapacity due to illness which:
1. while it continues during the Elimination Period and the following 24 months, prevents the Employee from performing each and every duty of his/her regular occupation or employment.

2. while it continues thereafter, prevents the employee from engaging in any commensurate
occupation for which he/she is or becomes reasonably qualified by education, training or experience.

Some disability policies have more detailed definitions of “disability”. Whether or not you meet the definition of “disability” will depend in large part on the medical evidence.

The medical evidence is the key to winning long term disability cases.

The Key to Winning Long Term Disability Claims

The primary reason people get denied disability benefits is lack of medical proof of the disability or lying in their initial application for insurance. In many cases, insurance companies will not simply accept your own doctor’s letter or the completed form your doctor sends in. They should accept it but often do not and deny the claim.

In most cases, we recommend obtaining a copy of your entire medical file from all treating physicians. Those files are reviewed and a summary of your medical history and current medical conditions is prepared. Next, depending on your type of disability, experts are hired to assess your medical condition and provide an expert medical-legal report. If your disability is physical, then an expert in the specific field of your physical disability should be hired to write a medical-legal report. If your disability is emotional or psychological, a psychologist or psychiatrist should be hired to assess, treat and provide an expert opinion on your disability.

In all cases, the expert should be given your medical file and a copy of the policy of insurance with specific reference to the definition of disability. The expert should be asked to specifically provide an opinion on whether or not you meet the definition of disability as defined in the policy with specific reference to the definition itself in their report.

Faced with an expert report, the insurance company will need to either reverse their denial decision, maintain their denial position or send you to their own experts to assess you and obtain their own expert reports. If the insurer maintains their denial in the face of a report from your own doctor and your expert and does not retain their own expert, that could be considered bad faith and entitle you to punitive damages against the insurance company.

Objective Medical Evidence

Another important consideration is the medical evidence provided by independent medical tests. This is called objective medical evidence. Objective evidence includes measurable, visible test findings obtained by a medical examination (physical or psychological), tests, or diagnostic imaging. For example, an x-ray showing a fractured bone or a blood test showing cancer.

Medical evidence is arguably the most important component of your disability claim. Without medical support for your claim, your insurer cannot confirm that your illness or injury prevents you from working. A lack of medical evidence is the number one reason insurers deny claims. The onus is not on the insurance company to obtain the medical evidence, the onus is on you to provide it to the insurance company. Little or no medical evidence will usually result in an automatic denial of your claim for disability benefits.

Ongoing Medical Evidence

Most policies of insurance will require ongoing proof of medical disability and so it is important that you continue to see your health care providers regularly and participate in treatment as recommended by your health care providers.

It is important to also note that compliance with your treating physician (or expert’s) treatment plan and recommendations and even attempts at different treatments without success is good evidence of your willingness but inability to get better and work.

What to do if your disability cannot be proved by objective medical tests?

In these situations, the use of experts is key. Disabilities such as chronic pain or depression are difficult to prove through objective testing and requires the opinion of experts.

To receive disability benefits, you need to prove your disability prevents you from working. How do you prove you suffer from depression or have chronic pain for instance?

In cases such as this, in addition to medical experts, functional capacity assessments and occupational capacity assessments are useful ways to determine your level of disability. This assessment will reveal specific activity limitations.

However, there are some medical conditions that are difficult or impossible to measure. In many cases, the diagnosis is made on the information provided by the client with no objective medical test results available to support the information and self-reporting. Examples include fibromyalgia, chronic pain syndrome, and mental disorders such as anxiety, depression and PTSD. Evaluating these types of medical conditions is difficult. You will need to retain experts to provide medical-legal reports.

How can we help?
Our lawyers help many disabled clients win their disability claims every year. Our experienced disability lawyers will help you properly and comprehensively prepare your case and fight the insurance company. We find and hire the top medical experts to produce the best most comprehensive medical-legal reports and we obtain all medical files relevant to your case. We submit your medical evidence and will sue the insurer if they continue to deny your claim.

It is always advisable to speak with an experienced long term disability lawyer before making any decisions on your application for disability benefits.

Marc-Nicholas Quinn
Ottawa disability law lawyer