Authors: Kimberley Sebag and Bram Lecker
Injured at Work or Ill? A Guide for Making a Disability Claim in Ontario
Most of us spend large portions of our day working to earn a living. This is central to almost every adult’s life. Your job drives family routines and dictates your lifestyle. If you are injured at work or when an illness strikes, whether gradually or suddenly, it can leave you temporarily or permanently disabled. Without prudent financial planning, a disability can bring major lifestyle changes and result in tremendous financial hardship. Consequently, all Ontario workers should understand where to seek income replacement when facing a disability. Here is a guide for making a disability claim in Ontario.
Banked Sick Days
Banked sick days are coveted employment benefits, often included in collective bargaining agreements for unionized workers. They are less common in non-union private sector jobs. Generally, after working for a minimum period, your employer will “bank” days that you can take off with pay if you fall ill. Banked sick days are different from government protected sick leave provisions which most employees are entitled to. If you receive banked sick days as a benefit, then familiarize yourself with the terms and conditions by contacting your union representative or by referring to your employment contract or company policy booklet.
Employment Insurance (EI) Sickness Benefits
Employees who do not receive banked sick days can turn to the Canadian Federal government for EI Sickness Benefits. Your employer must be a registrant of the program for you to qualify. Also, you must have completed 600 hours of insurable employment. The benefit you receive may not equate your full salary, but this income will stand as temporary financial relief for up to 15 weeks while you recuperate.
Canada Pension Plan Disability (CPPD)
This is an extension of the Canada Pension Plan (CPP) administered by the Federal Government. Virtually all employees contribute to the CPP through payroll deductions with amounts matched by your employer. If you meet their minimum contribution criteria, the program offers benefits to individuals who cannot continue working because of a disability. To qualify for CPPD, you must apply before age 65 and prove that your disability is severe and prolonged enough to prevent you from seeking gainful employment.
Workers’ Compensation Benefits (WSIB)
Ontario employees who are injured at work, or those who fall ill due to a workplace related matter can seek benefits from Ontario’s Workplace Safety and Insurance Board (WSIB). Your employer funds the WSIB by paying premiums that are dependent on the size of their payroll. With it, they purchase “no fault” insurance for their employees. Injured workers receive income replacement and other benefits in exchange for giving up their right to sue employers. Often referred to as the “historic trade-off”, Workers’ Compensation shields employers from all liabilities that arise when you become injured at work or fall ill due to your workplace environment. The WSIB recently amended their policy to include traumatic or chronic mental stress in their list of workplace related injuries.
If you are injured at work, inform your employer immediately. They must forward a WSIB Employer’s report within 72 hours. You must also see your physician as soon as possible to ensure a WSIB Doctor’s Report supports your claim. WSIB pays out two types of compensation. The “Loss of Earnings” benefit represents 85% of your wages, effective from the first day after your injury or illness. You can collect it for two years, maximum or until you turn 65 years of age, whichever occurs first. The second, “a Non-Economic Loss award”, compensates you for pain and suffering. To qualify, you require a medical opinion from an independent physician.
Ontario Disability Support Plan (ODSP)
Disabled Ontario residents can apply to the provincial government for assistance with their living expenses through the ODSP. This program is considered a last option when you fail to qualify for all other programs. It covers expenses like food, shelter and clothing as well as drug and vision care for low-income individuals. You must meet the program’s definition of a disability and demonstrate a financial need. ODSB administrators will assess your family’s total income and assets. And you may not qualify if your family income, savings, equity and retirement savings exceed their low-income cut-off standards.
Short-Term Disability (STD) Insurance Benefits
If your employer offers group disability insurance or salary contribution benefits as a perk of your employment, then you are in a better position than most to ride out an illness or disability. Some employers offer them as share cost benefits while others cover the premiums, leaving you to declare them as taxable benefits. Regardless, these peace of mind contracts are valuable. Unlike WSIB, you can make an STD claim regardless of whether your illness or injury was workplace related or not.
Short-term disability benefits generally offer salary continuation or a disability benefit amounting to 60% of your pay for a short duration. The length of time varies depending on the plan, but ranges from 3 to 6 months. When applying for STD benefits, you must be mindful of a salient unholy alliance related to some short-term benefits plans. To keep the costs low, the insurance company administers the program, but your employer pays your benefit. The insurer will vet your application and decide whether to approve or deny it.
If the insurer denies coverage in spite of clear medical evidence from your physician, then seek legal help from one of our employment lawyers who are also familiar with disability benefits law. These benefits are an integral part of your remuneration package and your employer and they hold a legal obligation to pay the benefit when your circumstances call for it.
Long-Term (LTD) Disability Insurance Benefits
If your illness or disability lasts longer than 6 months, then you should apply for long-term disability benefits as soon as possible. The application process is like that described above for short-term disability benefits. However, this time the insurance company both administers and pays out your benefit. LTD benefits provide income replacement, usually a percentage of your salary, for a longer period, depending on your circumstances.
Following a successful claim, insurers offer LTD benefits for the first two years, if you are unable to work in your own occupation. After this, they will extend the threshold to “any occupation”. This means they will extend your benefits, sometimes even to retirement, only if your condition prevents you from working any type of job.
Also, when applying for LTD benefits, consider WSIB described above. If your disability was caused by a workplace accident, then the LTD benefits would overlap with workers compensation benefits. Accordingly, you cannot collect twice for the same time period or for the same injury or illness. In this case, you must review which plan offers you better compensation and terms. A session with one of our employment lawyers will arm you with the right information to reach this decision.
Making A Disability Claim in Ontario: The Application Process
Most individuals can maneuver through the application process for all programs and benefits described above without involving a lawyer. While the processes are often cumbersome, you must follow instructions carefully and furnish all documentation.
However, you must be vigilant of a structural bias that exists, particularly with STD and LTD claims. Neither your employer nor the insurer benefit from paying out your claim. These are large expenses, regardless of whether you have paid into the plan for years. Almost always, insurers will either deny your claim or cause interminable delays by asking you for further documentation. And even after you qualify to receive them, your insurer could prematurely terminate them on a technicality. The matter becomes more complicated when you return to work and your employer has trouble accommodating your disability. And most of all, with LTD benefit recipients, if your employer no longer wants you back, then the matter of your termination entitlements can become very contentious.
Seeking Legal Intervention
Situations like these will cause much distress, especially when you are fighting or recovering from an illness or disability. This is when you must seek legal intervention and we can help. We have over 35 years of experience litigating cases where employers and insurers have played unfair. Do not let the matter of our legal fees add to your burden. For most cases, we do not require an up-front retainer. Instead, we charge a percentage of the settlement we obtain for you.
If you enjoyed this article, please consider sharing it.
