Misleading wording in your Disability Policy: why you may be entitled to more
Most disability policies indicate the claimant must be “totally disabled” in order to obtain their benefits. However, what may come as a shock to many, is how the policy defines “total disability”.
The harsh wording has been deliberately placed in these types of policies to discourage claimants from applying for benefits. The term “total disability” conjures up images of a person with such severe injuries or disabilities that they cannot do anything for themselves such as feeding, bathing, walking, and so on. This is simply not the case when it comes to the definition of total disability under a short or long term disability policy.
While each and every policy is different, the majority of disability policies define a total disability as the inability of the claimant to do their own occupation due to injury or illness and then after 24 months, the definition changes to the inability of the claimant to do any occupation.
Once again, the language used is a scare tactic. “Any occupation” does not mean that the claimant is incapable of performing any job at all. Rather, the definition of “any occupation” means that the claimant is unable to engage in any gainful occupation that the insured is reasonably suited for based on his or her education, work experience, and other individualized factors. Again, the language does not actually mean any occupation at all, it must be viewed in the context of the insured’s education, training, experience and remuneration.
This highly subjective and has been interpreted by the courts with flexibility. In Bacon v. Saskatchewan the Court commented that in order to satisfy the policy definition that one is unable to work at any reasonable occupation, which is defined as a gainful activity for which the employee is, or may reasonably become, fitted by reason of education, training or experience, a number of factors ought to be considered. The plaintiff will be considered under the plan to be totally disabled if she is unable to substantially perform any occupation that is:
(a) neither consequential or trivial; and
(b) similar in nature and remuneration to her former occupation; or
(c) similar in remuneration to her former occupation and of such a nature that she can become capable of performing it substantially within a reasonable time and with a reasonable effort and expense.
This means for example, that if you are employed as professional athlete it would not be reasonable for you to then work in an entry level position at a bank. As such, “any occupation” does not in fact mean any old job.
These are just few of the ways in which insurers try to intimidate claimants into walking away from benefits they may be entitled to.
For more information on disability benefits, do not hesitate to contact Catherine Shearer (@guelph_injury_lawyer) at McKenzie Lake Law Firm LLP, operating in Guelph, Ontario.