Disability Leave

Most people who are employees of a company or organization in Ontario have access to group benefits. Group benefits may include financial coverage for dental care, physiotherapy, massage therapy, medication, and more. They may also provide short-term and long-term disability benefits, which can provide financial support should a person be unable to work due to a disabling medical condition.

Every case is unique, and many different factors may influence what is possible in obtaining disability leave in Ontario. If you have questions or would like to discuss the specifics of your case, contact our disability leave lawyers for a free consultation. Our Toronto disability leave lawyers may be able to assist clients across Ontario.

What Constitutes Disability Leave In Ontario?

Under both short-term and long-term disability benefit plans, disability is typically defined as having a medical condition that prevents you from doing your job. Under the “own occupation” provision, you are required to prove that you are not able to do the essential duties of your own occupation. This may provide disability benefits for up to two years on a long-term disability plan, within a group policy setting. Following two years of “own occupation” disability benefits, a person must prove they are not able to do any occupation, any job, in accordance with their education, training, and experience, wherein they would be able to earn at least 65% of their previous income.

Are There Different Types Of Disability Leave In Ontario?

There are short-term disability benefits through an employer, and long-term disability benefits through an insurer. In addition, some people might have their own individual long-term disability plan under which they can apply for benefits if they are not able to work.

Outside of private plans, there are government-run disability plans. The Canada Pension Plan (CPP) can provide disability benefits if you prove that you have a prolonged and severe disability because of which you cannot do any job. Provincially, the Ontario Disability Support Program (ODSP) is an income support program for people living with a substantial mental or physical impairment that is continuous or recurrent, and is expected to last one year or more.

How Do I Know When I Should Go On Disability Leave?

If you are struggling with a medical condition and have symptoms as a result of which you are not able to functionally perform the essential duties of your job, then you may be eligible to go on disability leave. A condition may involve things like physical, psychological, or cognitive impairments. A first step toward seeking disability leave is speaking with your medical professionals about your medical condition. If they believe you may be eligible to go on disability leave, then contact our law firm for a free consultation to see how can help with next steps.

For How Long Can You Go On Disability Leave?

In the context of long-term disability benefits, an insurance company may pay you benefits for the first two years of you being unable to perform the duties of your job, and as long as you have medical evidence to support your case. After two years, if you continue to be unable to work, and your doctors support this, the insurance company may pay benefits as long as you continue to meet the tests in the policy, until the age of 65 or any other term as stipulated in the policy.

Can My Job Security Be Affected If I Go On Disability Leave?

Most employers will not terminate employment for someone who is just starting to receive short-term or long-term disability benefits. However, if they do, they will have to pay the obvious termination compensation, and severance. If it’s within two years of the employee going on disability leave, they may also pay damages based on discrimination due to disability. Most employers know not to terminate someone who has been approved for a disability benefit within those first two years. However, after two years, if an employer finds that an employee will not be returning to work due to a permanent or prolonged disability, they can terminate that person’s employment based on the doctrine of frustration.

How Can A Disability Lawyer Help Me With Disability Leave?

A disability lawyer may be able to help make sure your insurer or company honour their contractual obligation to pay your disability benefits. If your application for disability benefits has been provided to an insurer or employer, along with the appropriate medical statements, and your insurer or company are not paying the disability benefit, a lawyer may ensure you receive your benefits, or compensation in a settlement.

How Do Legal Proceedings Work For Disability Leave?

If your disability benefit has been denied, a lawyer will typically first write to the provider, and ask that they pay your benefits. If the provider does not pay the benefits within thirty days, then we may sue for wrongful denial of benefits and any other damages that might flow from the wrongful denial of benefits.

Additional damages may include:

  • Aggravated damages;
  • Mental distress damages;
  • And, in some cases, punitive or bad faith damages.

If the insurance company maintains their denial of your disability benefit, then we may start a lawsuit. The insurance company or the employer will likely hire a lawyer to defend the case. Typically, the matter proceeds to a mediation, which is essentially a settlement meeting, and many cases resolve at that point. Often, eleven to fourteen months is an average timeline, from a statement of claim to a resolution.

How Do Disability Lawyers Charge For Their Fees?

At Howie, Sacks & Henry LLP, we charge on a contingency fee basis. This is a Law Society of Ontario approved agreement. The contingency fee is not triggered until we succeed on your behalf and obtain compensation for you in a settlement or reinstatement of your denied benefits. There is also something in the contingency fee agreement called “costs.” On resolution of the claim, we may make sure that the defendant will contribute to a portion of your legal bill. So, we may obtain costs from the defendant on top of the settlement amount. Those costs would go to you, the client. This may help offset the percentage that we charge on resolution of the matter.

How Long Can Disability Benefits Last?

Long-term disability or short-term disability benefits are subject to the terms of the relevant policy or contract, and this includes the length of time for which they may be paid. Typically, these benefits are payable until the age of 65 if a person is unable to work for that period of time.

Who Is Eligible For Long-Term Disability In Ontario?

First and foremost, a person may be eligible for long-term disability benefits if they are covered under a disability plan. This may be either a group benefits plan through an employer, or an individual policy. Usually, a policy will require them to have been actively employed with a company for at least twelve months prior to applying for disability benefits.

The next step is meeting the eligibility criteria. A policy typically has a definition for total disability, often set out under two different provisions, known as “own occupation” and “any occupation.” An “own occupation” provision stipulates that you are unable to do the essential duties of your own job. This does not just apply to your job at the company where you currently work. It applies to the duties of your own occupation at any company, anywhere. This is an important point of clarification because even if you are unable to work at your current place of employment, you may not meet the test of disability for the “own occupation” provision if you could be able to work in your same occupation somewhere else.

After two years of “own occupation,” the test changes. This is the “any occupation” provision, and it is defined by the inability to do any job, in accordance with your education, training, and/or experience.

A number of medical conditions may prevent a person from working. Examples include:

  • Major depressive disorder
  • Anxiety
  • Autoimmune disorder
  • Chronic pain
  • Fibromyalgia
  • Traumatic brain injury
  • Chronic headaches
  • Sleep deprivation
  • Post-traumatic stress disorder
  • And more

How Are Disability Leave Payments Calculated?

Each specific policy will dictate how payments are calculated. They are often calculated as a percentage of income. For short-term disability benefits, this may be 100% pay for six months. Or it may be 100% for 16 weeks, or 100% for the first four weeks and 85% thereafter. The amounts vary.

For long-term disability, it is common to see 66.7% of a person’s annual income covered. Sometimes it’s more. The amounts vary, but it is typically calculated as a percentage of your income.

How Does A Disability Lawyer Prove I Need To Go On Disability Leave?

A disability lawyer may advocate on your behalf to show the insurer why their decision to deny you benefits was wrong. Evidence we may need to gather from you includes:

  • That you continue to be unable to work;
  • That your treating medical professionals support your condition’s impact on your ability to do your job.

Who Makes The Decision To Allow Long-Term Disability?

In the context of long-term disability benefits, decisions are typically made by a claims manager or adjudicator within an insurance company.

What Happens To Long-Term Disability If My Employment Is Terminated?

If you are receiving LTD benefits, and the employer terminates your employment, that doesn’t mean your LTD benefits are also terminated. This is because you began to receive LTD benefits while you were still an employee at the company.

If you apply for and are denied LTD benefits prior to your termination, you may still pursue your LTD benefits, so long as you are continuously disabled and meet the tests of disability.

A situation may arise wherein a person is not meeting expectations at work due to their medical condition, and their employer fires them. Can this person apply for LTD after being fired? The answer is dependent on a specific set of conditions, but it may be possible. If you apply for an LTD benefit after your employment has been terminated, you must show evidence that you had a disabling condition prior to your termination, that you were seeing medical professionals about it, and that the termination exacerbated that condition. For example, if you were suffering from anxiety or depression prior to your termination, and that termination exacerbated your anxiety or depression, then you may be able to apply for LTD.

If you are applying for LTD benefits following your termination, make sure to do so during the notice period. If you do not apply during the notice period, you will not have any coverage.

Are Long Term Disability Payments Taxable?

This depends on the policy. If an employer pays for those benefits, often the answer is yes. If the employee pays, then the answer is no. Sometimes both the employer and the employee are governed by the policy, and therefore whether or not disability payments are taxable will depend on your specific circumstances.

Contact Our Disability Leave Lawyers For a Free Consultation Today

Navigating disability benefits can be a challenging process, especially while living with a disabling medical condition. Every case is different, and many different factors may influence your eligibility for benefits, even if your claim has been denied. Working with a lawyer may help ensure that you receive the support to which you are entitled.

If you would like to discuss the specifics of your disability leave and learn what options may be available for you, contact us today to schedule a free consultation with our Toronto disability leave lawyers.

*Please be advised that the content of this article is intended as a general overview on the subject of disability leave in Ontario, and should not be construed as legal advice. For legal advice, please consult with a disability benefits lawyer.

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