Chronic Pain & Disability Claims| Author: Bram Lecker, Employment Lawyer
Working with Chronic Pain
Physical pain is debilitating and can leave many individuals unable to work. When linked to an obvious physical injury, your diagnosis and treatment plan can be relatively clear cut. Not so for someone living with chronic pain. Family physicians report that the most common types of chronic pain complaints they receive are for the lower back and neck. Headaches, such as migraines, follow closely behind. And third on the list is chronic joint pain caused by arthritis or trauma. The list is rounded out with chronic abdominal pain, Multiple Sclerosis, which affects the central nervous system, and Fibromyalgia which impacts muscles and soft tissue. These last two conditions cause widespread pain throughout the body accompanied by fatigue, cognitive and other physical impairments.
Employees suffering from mild to medium chronic pain will usually bite their tongue and do whatever they must to get through the workday. Many rely on medication to control the pain. Some days are worse than others, and stress can aggravate symptoms.
When Chronic Pain Becomes a Disability
If you suffer from chronic pain, then you likely spend a considerable amount of energy managing flare-ups to bring your pain under control. You may require accommodation at work when this occurs. The real problem begins when chronic pain becomes overwhelming, constant and so debilitating that it prevents you from working. Your physician might ask you to take time off to rehabilitate.
Some employers offer private disability insurance coverage exactly for such circumstances. They are designed to help you financially during unexpected medical emergencies. Short-term disability (STD) plans cover a portion of your salary for up to six months of qualified medical leave. Unfortunately, you will quickly discover how inaccessible these benefits are after you put in your application. A majority of disability claims for “invisible illnesses”, like chronic pain and mental health leave, get denied. The reason: lack of sufficient medical evidence.
Proving Chronic Pain Disability
With chronic pain, you carry the burden of proving your condition. For objective evidence, most people turn to their family physician. Unfortunately, insurers view this with bias. General Practitioners of medicine usually have long-term relationships with their patients. Consequently, most insurance companies will not accept their attestation as sufficient. Weeks will go by between applications and appeals, leaving you in the frustrating position of fighting both your illness and the insurance company.
Furthermore, to reduce costs, many employers opt to fund claims for short term disabilities themselves. They engage insurance companies as “screening agents” to weed out all but the most persistent of claimants. In such instances, when claims and appeals for STD benefits are denied, you are being “handled” by your employer. Their failure to pay your benefits may constitute a breach of your employment contract. Consequently, you might need legal intervention to help you push this claim through and to ensure no breach of privacy occurred with your medical records.
Extended Illness and Long-Term Disability
If the chronic pain does not get resolved during your short-term disability leave, then you can apply for long-term disability (LTD) benefits. Just like STD, long-term disability plans cover a percentage of your salary for up to two years, sometimes more. However, this time, the insurance company will pay the benefit. LTD claims are expensive ticket items and consequently, you can expect the screening process to be equally intense.
If you previously qualified for STD benefits, do not assume you will automatically receive LTD benefits, even if your chronic pain condition remains the same. Generally, for the first two years of an LTD claim, insurance companies will evaluate your suitability to perform work in your own occupation. They will ask for regular progress reports and pay very close attention to the wording. A slight improvement in your condition could trigger the cancellation of your benefits, even if you are far from full recovery.
In the worst-case scenario, you could get caught between a rock and a hard place. The insurance company will start egging you on to return to work when your employer may not want you back! During your absence, they might have hired someone to do your job and moved on. In this case, you will definitely require a lawyer to intervene and negotiate termination benefits.
Permanent Disabilities and Chronic Pain
If your LTD coverage extends more than two years, then expect matters to change at the two-year mark. Your chronic pain may have left you permanently disabled and unable to perform work in your occupation. However now, the insurance company will apply a different standard to evaluate your disability to continue benefits. They will assess you for the ability to work in any occupation. You can expect your benefits to stop suddenly until they have completed this assessment. And your dealings with them will now become even more contentious. In all likelihood, you will need a lawyer.
Engaging A Lawyer
For a legal intervention to push through a disability claim at any of the stages described above, ensure you engage the right type of lawyer to assist you. A generalist or personal injury lawyer may not be able to help. Disability benefits are considered peace-of-mind contracts under the law. As a component of your compensation package, you are entitled to them just like your salary. Withholding them for no good reason is a breach of your employment rights. To resolve this matter, you require an experienced employment lawyer who is knowledgeable about disability benefits contracts and has a skilful grasp of medical terminology.
Lecker & Associates are old hands in these matters. We have over 35 years of experience successfully challenging insurance companies about denied and cancelled disability claims. We can alleviate much of the stress associated with applications and appeals. With a seasoned litigator at your service, we will review the specifics of your job function and help you collect proper medical reports to position your claim for success.
Do not let the matter of legal fees keep you from seeking your entitlements. We encourage you to contact us for a complimentary assessment of your case. We will only take on your case if we believe we can win, and we take a vested interest in seeing it succeed. For most disability cases, we charge you a fee based on a percentage of the settlement we obtain for you.
Our team has the experience and bench strength to go after insurance companies and employers with every tool at our disposal. We take care of your claim, leaving you free to focus on your health and recovery.
About The Author
Bram Lecker, B.A., LLB., is the principal of Lecker & Associates, and one of the most experienced employment lawyers in Ontario. For over 35 years, he has built a stellar team of lawyers who successfully represent employees in disputes with employers and insurance companies over their disability claims.