Do knee disorders qualify as a disability in Canada?
Knee disorder can include a variety of disabilities, most of which do qualify as a disability in Canada. Since the knees are such an integral part of the body’s function, having knee issues can easily be debilitating to anyone. The impact of a knee disorder on a breadwinning adult can be felt throughout the household. Depending on the type of disorder, it may be too disabling to continue working in any capacity.
Even though a knee disorder counts as a disability within Canada, that is not enough to have your long term disability benefits automatically approved. To be approved for disability benefits, you must prove to your insurance provider that your knee disorder renders you unable to stay at work.
Insurance providers aren’t in the habit of giving out benefits to anyone who requests them. They will do their best to minimize or undermine your symptoms and prove you can keep working. So yes, knee disorders qualify as a disability in Canada, but proving that to your insurance provider can be another battle.
Employment and disability rights for knee disorders
Whether your knee disorder stems from an injury or an ongoing illness, the impact has consequences on the entire body. The knees are integral to how the body functions. This can be stressful for those struggling to maintain employment due to their ailment.
In Canada, it is illegal to be let go for a discriminatory reason regarding a medical condition. Employees have the right to have their disabling conditions accommodated in the workplace. In return, employers must make it their duty to be flexible with making the workplace comfortable for the disabled. Generally, employers can fire or terminate if there is proper notice and adequate reasoning. However, firing someone due to their medical condition is discriminatory and never valid. Sick leave is a reasonable request that most employers will grant. To receive a medical leave of absence, you must present a doctor’s note that states the need for time off and the required length. A doctor’s note must be resubmitted every three to six months if it is an extended leave.
If your employer attempts to fire you while on sick leave, you have legal rights. This may include severance pay or even a reversal of termination. You may submit your long term disability claim while on sick leave, and if you are denied, you can remain on vacation while you appeal. Knowing your rights while submitting a claim for long term disability benefits is crucial, and having sound legal advice can help you navigate this process.
Types of disability rights for knee disorders
Not all disability insurance plans are the same. Here are the typical benefits included in Canadian disability insurance plans:
Paid Sick Leave
Some workers will have a bank of sick time to use in the first days of disability. The intent of this benefit is to allow the worker to have a few days to get back to work. Some workers may have many weeks or even months of accrued time to use.
If you do not believe that you will be able to return to work before your paid sick leave is exhausted, be sure to complete an application for disability insurance benefits right away. You do not need to wait until you have used all your paid sick leave before submitting your application. Also, it is always easier to work on a disability application while you are being paid so don’t wait until your benefits have run out.
Another major reason not to wait to apply for STD Benefits is because of deadlines that may apply. You may miss the deadline to apply for benefits because you are being paid sick leave benefits.
Employment Insurance Sickness Benefits
Your alternative to paid sick leave is government provided employment insurance (EI) benefits. Most workers have fewer than 15 weeks of paid sick leave so EI benefits will make up the difference between the expiry of paid sick leave and a STD Benefit. EI Benefits must be applied for through the government. In order to apply, you must obtain a medical report from your doctor and a Record of Employment (ROE) from your employer.
Go to www.servicecanada.gc.ca for information on the EI sickness benefit and to download the application forms. Service Canada will not process your application until both the medical form and the ROE has been submitted, so be sure to book a doctor’s appointment and request your ROE right away.
Short-Term Disability Benefits
The first of two main benefits in most disability benefit plans are STD Benefits. The purpose of STD Benefits is to provide you with income while you are unable to work due to illness or disability. The Benefit is designed to cover short absences and not intended to be a long-term solution.
STD Benefits provide a weekly or bi-weekly payment for a number of months. The short pay periods are designed to provide you with uninterrupted income while you are absent from the workplace. Most often, you will be required to use accrued paid sick time before accessing your STD Benefits. While cashing in sick time may be frustrating for some, it is wise to accept this condition because the sick time should provide you with more income than the STD Benefit.
The STD payment typically provides for a percentage of your regular weekly earnings or a specific amount of money. The benefit payment calculation details are specific to the policy and set out in the insurance policy document.
Payment examples include:
• The worker will be paid 60% of his or her pre- disability weekly earnings, or
• The worker will be paid $500 per week, or
• The worker will be paid their pre-disability weekly earning, up to a maximum of $500 per week.
Most STD Benefits last between three and six months. If the group plan does not have a LTD Benefit, the worker will have no further benefits under the group policy.
Long-Term Disability Benefits
LTD Benefits are the second major element of most group disability plans. There are some plans, however, that only include LTD Benefits. If your plan has both STD and LTD Benefits, a disabled worker will ‘roll over’ to the LTD Benefit at the expiry of the STD period if they are eligible to do so.
Eligibility for LTD Benefits is not always a given. Workers often earn their eligibility to the Benefits through working continuously for the employer for a number of months.
Eligible workers will be able to make a claim for LTD Benefits if they have been out of work continuously for a specific period of time. This period of time is typically the length of the STD Benefit. This period of time set out in the policy wording is referred to as a “waiting period” or “elimination period”. LTD Benefits will not be paid prior to the elimination period; however, benefits will be paid for the total period of continuous disability if the claim is approved.
Benefit payments under a LTD Benefit are assessed based on a percentage of your pre-disability income. Typically, the benefit will be between 55% and 75% of your regular earnings, or a set amount of money per month. Other polices will have a net formula.
Payment examples include:
• The worker will be paid 66.7% of their monthly pre-disability earnings, or
• The worker will be paid $3,000 per month, or
• The worker will be paid 66.7% of his or her monthly pre-disability earning up to a maximum of $3,000 per month.
The exact payment formula will be set out in the policy document. Be sure to refer to your policy to confirm what the applicable payment formula is for your claim.
The LTD Benefit will make payments on a monthly basis for a set number of years (e.g. 5, 10, 20), or until you reach a certain age (e.g. 60, 65, 67). Some plans may have a benefit termination formula where a mixture of the years a claimant received benefits and the claimant’s age is used to calculate an end date. Generally speaking, the latest date where a claimant will be eligible for Benefit payments is called the Maximum Benefit date.
How to win disability benefits for knee disorders
The first step in making and being successful in a long term disability benefits claim is to have an official medical diagnosis. When going to the doctor, be specific about the location where you’re feeling pain and the symptoms that go along with it. If you can give your doctor as much information as possible, you will be able to streamline identifying the specific issue and gain an official diagnosis. This will be vital to your claim, but it will also help you understand how to treat the problem.
Since there is a wide range of different knee injuries and conditions, recovery time or likelihood will vary. Your insurance provider will want to see a range of testing, prescriptions, and therapies needed regarding your knee condition. This will help demonstrate the severity of your knee disorder and strengthen your claim to long term disability benefits.
A diagnosis is an essential first step, but your insurance provider will also want to understand further why you cannot keep working. Many people can keep working despite their knee disorders, so you must prove why you cannot. Insurance companies also want to see effort on behalf of the employee to find a way to stay at work. If your previous role was loading merchandise, they’d like to see you switch to a lighter position such as a desk job. This process can be frustrating, but it is vital to the success of your claim.
One last method of strengthening your claim is to keep a record of your knee disorder. Keeping a journal with details on pain, flare-ups, missed time at work, and other relevant information will help you strengthen your claim. Recording your issues with mobility, along with the scope of your job requirements, can help paint a clearer picture. The insurance providers won’t know what you don’t tell them, and they won’t ask. Advocate for yourself, and fill in those details.
How to hurt your long term disability claim for your knee disorder
- Having an incomplete medical file that’s missing necessary tests or an official diagnosis
- Not showing effort towards maintaining employment
- Having a negative attitude towards those involved with your claim
- Unnecessary blocking or stalling of reasonable requests to do with your claim
- Having statements that are inconsistent with your claim
How to improve your long term disability claim for your knee disorder
- Present a folder of well-documented medical evidence, including your diagnosis, medications, and any tests you’ve taken regarding your knee disorder
- Having statements that match what is in your medical file
- Detailed record of symptoms, flare-ups, and changes in your condition
- Keep a polite and friendly attitude towards those working on your claim
- Taking responsibility for any problems within your claim
- Being willing to accept and follow through with recommendations, even if you disagree with them
Common reasons for denial of knee disorder claims
With the wide range of knee disorders, insurance companies will often try to minimize the condition’s impact. They’ll seek ways to lessen your knee disorder's severity and claim that you can keep working. Sometimes insurance providers don’t understand the full scope of your job requirements and thus don’t see how your limited mobility affects your ability to stay at work.
Denial of long term disability benefit claims for knee disorders is often due to insufficient evidence. This can mean a lack of medical evidence or a lack of proof that your condition or injury truly keeps you from being able to work. If they see you haven’t tried physio or have missed a prescription, they will use this to justify denying your entire claim.
Claims for long term disability benefits are also commonly denied if the insurance provider doesn’t feel you’ve made every effort to stay employed. They want to see you’ve done everything you can to work fewer hours, take on lighter duties, and anything else in your power. If they don’t feel you’ve done your part, they will use that to deny the claim.
Having your claim denied can be frustrating, especially when you know that more time spent on your feet is further deteriorating your knee condition. You can appeal the decision, which will allow you to fill in the gaps in your benefits claim. Having sound legal counsel to help you find ways to strengthen your claim can streamline the process toward receiving the benefits you’re entitled to.
What if your claim is denied?
Know that you are part of a large group of Canadians who have had their benefits denied by the insurer at some point during the course of a claim. Those who have been issued a denial letter are those who had their application rejected by the insurer. They were deemed eligible to apply for benefits, but not totally disabled and therefore were not approved for benefits. Those who have been issued a termination letter are those who were approved for benefits but were then found not totally disabled. The insurance company generally chooses to terminate benefits at or before the two-year mark from the date of disability.
For those who have been denied, some will be legit mate because the applicant is not in fact disabled. Other applicants are truly disabled but were simply denied by the adjuster because their application was not strong enough to warrant approval. Of course, the insurer would prefer that denied applicants forgo the appeal process and not sue for benefits.
For those who were approved and then cut off sometime afterwards, the insurer is attempting to ensure that the denial is accepted by the insured during the “own occupation” period. This is ideal for the insurer as it may prevent appeals or legal claims. Thus, it allows the adjuster to close the file well before the Change of Definition date occurs.
You cannot change the fact that the insurance company denied your claim. However, you do have complete control over what you do in response to the denial or termination of benefits.
The options available to the applicant will depend on what is permitted by their policy or plan. In most cases, the applicant can advance their claim to an internal appeal mechanism or commence a lawsuit. If a plan is through a non-profit disability benefit trust fund, it is likely that only an internal appeal mechanism will be available to them. For these workers, they have been denied the right to have a neutral court decide whether or not they are entitled to benefits.
WHAT IS THE DIFFERENCE BETWEEN A DENIAL LETTER AND A TERMINATION LETTER?
It is a bad day for any disabled worker when they receive a denial letter or termination letter. The letter is essentially a rejection of financial support in a time of need and it leaves most people very worried about their financial future. After receiving a letter, some disabled people experience severe declines in their mental or physical health because it feels like their expected safety net has been ripped out from beneath their feet.
What the disabled person does after receiving a denial letter or termination letter is critical. First, be sure that you keep a copy of the letter. Photocopy and safely store a copy of the letter before making any marks on the letter. Any competent disability lawyer will want to see a clean copy of the letter to review at an initial meeting.
The denial letter is also important as it offers a window into the insurance company’s decision-making process on your file. The letter should (but does not always) spell out what information was reviewed and what findings were made with respect to the information in your file. The insurer should explain why your application was denied, or why you are no longer entitled to benefits. For new claims, the denial will typically mention that while your injuries cause you to suffer some restriction, you do not meet the test for total disability. For cases where a benefit termination letter is sent, the insurer will often mention that activities (often from surveillance evidence or information from phone calls) are inconsistent with reported restrictions and limitations. The explanation provided in other circumstances will parrot select wording from the medical expert chosen by the disability insurer. Once you have sorted out why you were denied, you can then determine what you can do to attempt to overturn the unfavourable decision.
Warning! There is a lot of misinformation about insurance policies and the rights that come with them. Do not rely on the word of a union representative, co-worker, or supervisor to explain your rights and ideal strategy when facing an insurance benefits claim. This is especially so where there is no right to sue. While they may have the best intentions, they may not have the best advice. Contact an experienced disability lawyer to avoid a major claims mistake.
