Does lyme disease qualify as a disability in Canada?
With the rise of the tick population in Canada, cases of Lyme disease are becoming more common. It becomes a debilitating condition when the tick bite isn’t treated and turns into Lyme disease. Thus, it does qualify as a disability in Canada.
Lyme disease was once only a risk in parts of Ontario, but cases can be found all over Canada with the growing tick population. The medical treatments and support available haven’t grown at the same pace as the number of cases. Those with Lyme disease often need to take time off to manage their symptoms.
It can be tough to prove your Lyme disease is severe enough to keep you from working. It is a relatively new disability in Canada, and insurance providers will doubt and downplay the severity of the disease.
Employment and disability rights for Lyme disease
In Canada, anyone living with a disability has the right to a discrimination-free workplace. Likewise, employers have a duty to accommodate their employees living with a disability. Requesting sick leave is an already stressful process for anyone. If you have Lyme disease, you have likely already been through a grueling process just trying to get a diagnosis and understand what’s happening in your body. You may not have even known an infected tick had ever bitten you, so finding the source of the symptoms months later can be a medical mystery! After that process, you are exhausted and cannot keep working.
Since employers have a duty to accommodate those with disabilities within the workplace, requesting sick leave is not an unreasonable request. A doctor's note is required to be granted a leave of absence. The contents of this letter should indicate that you’ll need time off and the length of time needed. When it comes to more prolonged bouts of absence, these notes must be provided consistently. Every three to six months is a general standard for proving you’re still unable to return to work.If your claim to long term disability benefits for your Lyme disease is denied while you are on sick leave, you also have the right to remain on leave while you appeal.
You have legal rights if your employer tries to fire you while you’re away on sick leave due to your Lyme disease. You have the right to severance pay, and you also may be able to have your termination reversed. These situations can become challenging, so having a lawyer to help you navigate these strenuous situations can be an immense relief.
Types of disability rights for Lyme disease
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 Lyme disease
If you’re making a long term disability claim for your Lyme disease, you’ve likely already been through the trial-and-error process of receiving an official diagnosis. However, a proper medical diagnosis is the first step to winning your claim if you haven't. Insurance companies often won’t even look past a claim if it is missing medical confirmation.
Lyme disease can mimic many other conditions, and if you didn’t get diagnosed with the initial bite, it could be challenging for doctors to narrow it down to Lyme disease. In Canada, the test for Lyme disease often produces a negative result. It takes a lot of additional testing and elimination to wind up being diagnosed with Lyme.
Once you’ve received your diagnosis, you must prove why your condition is entirely disabling. Insurance companies will argue that many other people can manage their symptoms and keep working – so why can’t you? It is essential to keep a detailed record of your symptoms, how they’ve progressed over time, and the challenges they present at work. Insurance companies won’t know if you don’t tell them, and they won’t ask. The more details you can provide in support of your claim, the more likely you will succeed.
Insurance companies also want to see the effort and that you’re claiming the long term disability benefits after exhausting all other options. Working fewer hours, lightening your duties, and trying additional positions at work will show your commitment and strengthen your claim. Suppose you’ve traditionally been working on your feet all day and work with your employer to find a seated position. In that case, this shows you’re trying to adapt to your condition and overcome challenges at work, which insurance companies want to see.
How to hurt your long term disability claim for Lyme disease
- Not having an official diagnosis or relevant testing done to confirm your Lyme disease
- Hiding your Lyme disease from your employer
- Showing a lack of effort in altering duties at work to stay employed
- Having a poor attitude to those involved in your claim
- Unnecessary blocking or stalling of reasonable requests of information
- Skipping or missing doctor’s appointments
- Leaving prescriptions unfilled or purposely not doing what is necessary to alleviate symptoms of your Lyme disease
How to improve your long term disability claim for Lyme disease
- Presenting a file full of medical evidence, including official diagnosis, supporting your claim
- Taking advantage of any therapy or supports offered through your workplace
- Co-operating with doctors and your insurance provider
- Keeping a record of missed time at work, and instances where your Lyme disease directly affected your ability to stay employed
- Be honest, and provide factual truths when discussing your claim
Common reasons for denial of Lyme disease claims
The most common reason any claim for long term disability benefits is denied is lack of medical evidence. Insurance providers aren’t in the business of approving every claim, and they seek out any weak points in a claim to use as a reason for denial. Any gaps or holes in a claim will be scrutinized, and Lyme disease often does have some inconsistencies since many people don’t realize they have it until long after the initial bite. Also, Canada is behind the United States regarding recognizing, understanding, diagnosing, and treating Lyme disease. This doesn’t mean it’s impossible to receive these benefits, just that the process may take longer and be denied initially.
The other big reason that claims are denied is that the insurance provider doesn’t feel there has been enough effort on your part to stay at work. They want to see you’ve tried to alleviate the impact working has on your Lyme disease symptoms and that you tried to make it work before applying for the benefits. This can be frustrating when you know you cannot keep working, and it can be tough to dedicate that extra time to make these adjustments. However, it’s one of the hoops that you must jump through to receive the benefits you deserve.
If your claim for long term disability benefits is denied, you can still appeal. Before you appeal, you must fill in any holes in your claim to present a more robust argument. Hiring a lawyer to help you identify what you must do to strengthen your claim can tip the scales in your favor and help you receive the benefits you deserve.
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.
