Does multiple sclerosis qualify as a disability in Canada?

MS counts as a disability in Canada since the symptoms affect important body areas such as the spine, brain, and eyes. These integral functions are necessary for all areas of life and can heavily impair one’s ability to work.

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Most people develop multiple sclerosis between the ages of 20 – 40, which are prime working ages. The condition is degenerative, so even with all the treatments available, there will likely be a time when working is no longer a possibility. Keep track of the course of your condition so that if it comes time for you to make your claim for long term disability benefits, you have already begun preparing. 

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Employment and disability rights for multiple sclerosis

Canada has one of the highest rates of adults with multiple sclerosis globally. If you have a disability, you have a right to a discrimination-free workplace. This condition is recognized as a severe condition, and workplaces have a duty to accommodate those who have MS.

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Canada’s human rights laws dictate that employers must assist their employees with a medical condition regarding their multiple sclerosis. It affects their work. So, naturally, sick leave is a reasonable request that employers should accommodate. 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 you apply for long term disability benefits for your MS and your claim is denied, you can remain on sick leave while you appeal. Most employers will not object to this if you’re still providing doctor’s notes regularly.

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You have legal rights if your employer tries to fire you while on sick leave or while you’re applying for long term benefits due to your multiple sclerosis. If you are terminated due to your MS, you have the right to severance pay and may be able to have your employment reinstated.

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Navigating the process of applying for long term benefits can be complicated, especially when you’re already managing the symptoms of MS. Hiring a lawyer to help you with your claim can minimize the stress and streamline the process. You deserve the best legal counsel to help you receive your benefits. 

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Types of disability rights for multiple sclerosis

Not all disability insurance plans are the same. Here are the typical benefits included in Canadian disability insurance plans:

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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How to win disability benefits for multiple sclerosis

The first step toward winning long term disability benefits for multiple sclerosis is to obtain an official medical diagnosis. This sounds simple, but since there is no official test to diagnose MS, it’s a process of elimination. Your doctor will eliminate all other potential conditions before you’re officially diagnosed.

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Likewise, presenting a file full of medical evidence supporting your claim is essential. Multiple sclerosis affects everyone differently, and no two cases are alike. Not only are there physical manifestations of multiple sclerosis, like struggling with vision or memory loss, but there are also mental symptoms. People with MS often experience depression and feel isolated due to the disease. Documenting the symptoms you experience and the tests, prescriptions, and therapies you receive will support your claim and help you receive benefits.

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Although the medical side is essential, it’s not enough. Insurance companies want you to prove why you’re unable to work. They will try to minimize your condition and downplay the impact MS has on your ability to work. Keep a personal record of your state and its deterioration since your initial diagnosis. The most details you can provide to support your claim, the easier it will be to receive benefits.

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Insurance companies also want to see that you’re using the long term benefits claim as a last resort. They want to know that you have tried lighter roles and working fewer hours. Showing that you’ve tried everything in your power to stay at work will help you plead your case and have your claim approved. 

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How to hurt your long term disability claim for multiple sclerosis

• Presenting an incomplete file lacking a diagnosis or relevant testing
• Missing or skipping doctors appointments or therapy
• Having a negative attitude toward those involved in working on your claim
• Hiding your condition from your employer 
• Blocking or stalling reasonable requests of information regarding your claim

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How to improve your long term disability claim for multiple sclerosis

• Have a file full of medical evidence supporting your claim
• Being polite and cooperative to those working on your claim
• Actively attending therapy and receiving support 
• Being honest about your condition
• Cooperating with the insurance company 

Common reasons for denial of multiple sclerosis claims

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Long term disability claims for multiple sclerosis have some specific challenges. In the early stages, MS can have a relapse/remission phase. This often means that there are only short leaves of absence. Insurance companies will use this and pose the question as to why this time is any different? Why were you able to return other times, but not this time? Despite the research and evidence of the progression of the disease, insurance companies will still use this as a reason to deny your claim for long term benefits.

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Sometimes claims are denied because there isn’t enough medical evidence. Often doctors don’t fully understand what you need to be able to receive benefits, so it helps to communicate with your doctor. Your doctor wants to help you, so let them know how they can do that!

Claims for long term disability benefits will also be claimed if the insurance company doesn’t think you’ve tried to stay employed. They want to see effort on your behalf to stay employed to be confident you’re using the long term benefits as a last resort. This can take a little longer, but it’s worth it to demonstrate your commitment and need for these benefits! 

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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