We say that Canadian labour unions are a great thing.
They have given workers a voice, and an ability to achieve fairness in the employment relationship that can be anything but a level playing field for workers. They have fought and paved the way for a multitude of societal reforms and benefits in the workplace such as maximum hours of work, overtime, health/dental benefits, and bereavement leave.
They have even fought hard for improved workers’ compensation legislation, EI parental leave and human rights codes so that union members and non-union members alike can be protected in Canada.
Cracks in the Legal System
Unfortunately, within the realm of short and long-term disability (STD/LTD), much work needs to be done. Ill and disabled union members are falling through the cracks when applying for employer-sponsored disability coverage. They are being left to the mercy of private insurance “advisors” with their never-ending demands for up-to-date medical information.
The insurance process has historically consisted of constant delays until the employee is no longer left with any money. Consequently, employees feel pressured by financial constraints and return to work before they are ready. Yet, since they are unable to fully perform their job functions, they seek medical leave, and the vicious cycle starts again.
It’s not the fault of the unions. They have bargained in good faith for the availability of these disability plans to their members just like any other employer-sponsored benefit. But it must be finally acknowledged: there is a largely unnoticed structural hole in that cherished legal umbrella that we enjoy in Canada.
Disabled union members are largely vulnerable and unrepresented when dealing with the wolves of the insurance industry. The fact is employment lawyers cannot intervene against the employer in matters involving the collective agreement following labour legislation in most provinces.
On the other hand, labour lawyers hired by unions who are the traditional guardians of employees’ rights set out in the collective agreements generally do not have experience in dealing with individual insurance claims.
Personal injury lawyers who do have expertise in such matters are well beyond their skills when dealing with employment relationships, and consequently, reluctant to intervene when they hear the word “union”.
STD – An All-Round Quagmire
There is a good reason. The disability arena is no safe place for the uninitiated. Most STD plans available to both unionized and non-unionized employees are self-insured. That means while an insurance company or a workplace medical advisory company handles the claim, it’s the employer that pays for income replacement benefits out of their own pockets. A difficult decision in Nayyar v. Manufactures Life Insurance Company 2012 BCSC stated that an insurance company or “workplace medical advisory service” acting strictly in an administrative capacity (ASO -administrative service only) cannot be directly engaged nor held liable for their “advice” to withhold benefits. The best and only recourse at that time is to hold the self-insured employer directly liable for the benefits withheld and any failure of accommodation, which may amount to a constructive dismissal.
While they valiantly try, labour lawyers are simply not accustomed to handling individual STD claims through the grievance/arbitrations procedure. Claim disputes are largely based on competing medical reports, excessive delays, and the cost to the union. The result is that union workers are largely left to fight the insurance companies independently.
LTD – the Nightmare Continues
Many employees suffering from a debilitating illness or non-work-related injury simply give up, quit, go back to work prematurely (generally the worst option) or wait it out with the help of minimal employment insurance benefits for 15 weeks. The problem is if the incapacity persists for more than 6 months, they are forced to apply for LTD.
Most LTD benefit plan providers are insurance companies, and they are not eager to payout, especially if the illness or injury is chronic. The reality is if an employee had been denied benefits because of a non-eligible medical reason under STD, the issue will hound them for LTD. The eligibility tests are essentially the same for both benefits programs for the first two years of coverage. Is the employee unable to perform the essential duties of his/her occupation? This consists of endless doctor reports, waiting, delaying, more queries, and maybe even an internal “appeal”. It’s all part of a cynical game to frustrate and obstruct the employees’ benefits claim.
For those lucky enough to get on a claim, the road ahead is not simple. The insurance “advisors” will look for the slightest improvement in an employee’s medical prognosis to terminate coverage, especially at the end of two years when the eligibility standard changes from the inability to perform the functions of “own occupation” to “any occupation”. The objective is to get the employee back to work. The question always is: does the employer want to accommodate a recovering employee who is working at less than capacity, say because of a heart attack, depression or simply because they are taking medications to manage pain, which affects their energy and cognitive capacity? There is an insensitive and odious term that employers’ human resources departments use when referring to employees returning from disability leave: they become “damaged goods”. At this point, the average claimant feels like the veritable hot potato and living in a sort of phantom zone.
Employment/Disability Lawyers – An Option for Union Members/Non-Union Employees
There is a solution or at least a path to it: employment/disability lawyers have the expertise and ability to deal with these problems, especially after the expiry of the STD period. In this instance, the Labour Relations Act does not prevent us from going head-to-head directly with the insurance company on behalf of any union or non-union employee. Like any non-union employee, we will work with the court system with the knowledge that insurance companies seldom allow these matters to go to a trial. As we hold their feet to the fire, many claims are settled right after a claim is filed or at mediation which must occur within 6 months of the date a Statement of Defence is received. We are more than willing to work with the insurance company and get the employees back to work on an accommodated (light duties) basis until they are fully rehabilitated.
We recognize that union members are understandably averse to paying costs for legal services thought to be covered under the collective agreement, so we will always defer our percentage of the recovery fee until the matter is settled. We require the insurance company to pay for most legal costs as part of any resolution. It is a little-known fact that all legal fees incurred because of an employment and/or disability matter are fully deductible from income tax. While no one should have to resort to legal action to obtain their entitlements, if it’s necessary, no disabled worker should hesitate to obtain an honest assessment of their situation. Our team of Toronto employment lawyers is always prepared to offer a no-charge initial consultation to assess your claim.
