Do neck and cervical spine disorders qualify as a disability in Canada?
Neck and cervical spine disorders are recognized as disabilities in Canada. The function of the neck is integral to anyone’s ability to perform at work, whether they’re sitting or standing. These disorders make sitting still or standing up for prolonged periods very painful, making maintaining any job complicated.
These conditions can progress over time, and can also limit movement in the shoulders and hands, so continuing to work becomes impossible. Even though neck and cervical spine disorders qualify as a disabling condition in Canada, proving that to your employer and insurance provider can be tricky, but not impossible!
Employment and disability rights for neck and cervical spine disorders
Taking sick leave is stressful for every working person; no one wants to be let go for health reasons out of their control. Employers may indeed fire anyone with proper notice and reasoning. However, they cannot fire you for a discriminatory reason regarding your neck and cervical spine disorder.
Whether you were injured on the job or your neck and cervical condition comes from an underlying health issue, you have rights at work. In Canada, those who are disabled have the right to a discrimination-free workplace. Likewise, employers must accommodate their employees. 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 your application for long term disability benefits is denied, you can remain on sick leave while you appeal. Most employers will not object to this if you’re still providing doctors’ notes regularly.
You have legal rights if your employer tries to fire you while you’re away on sick leave due to your neck and cervical spine disorder. You have the right to severance pay, and you also may be able to have your termination reversed if their reasoning involves your condition. These situations can become challenging, so having a lawyer to help you navigate these strenuous situations and prove the severity of your condition can be an immense relief.
Types of disability rights for neck and cervical spine 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 neck and cervical spine disorders
The first step in any claim for long term disability benefits is to receive an official medical diagnosis. Are your neck and cervical spine disorders resulting from an underlying condition or an accident at work? Having all the relevant information will help your doctor identify the source of the problem to have all that information in your file. The more robust your file is, the more evidence you have regarding your claim. This file should also include any tests you’ve taken like an MRI or x-rays, prescriptions, therapies, and anything relevant that can strengthen your claim!
Your insurance company will also want to see why you can’t continue working. Many people with neck and spine disorders can keep working – so why can’t you? Insurance providers will often downplay or minimize symptoms, so it’s up to you to prove that your condition is entirely disabling.
Keeping a personal record of when your condition started affecting your ability to work will help prove your point. Insurance companies don’t know what you don’t tell them, and they won’t ask. An excellent tool is a journal full of information about your symptoms, limitations at work, how your condition has worsened, and even dates and times. Memory fades, so recording all of this in real-time to look back on will be an asset.
To receive long term disability benefits, insurance providers want to see you’re using the claim as the last option. To prove this, they want to see you’ve made efforts to adapt and continue working. This means trying out different positions to relieve the stress on your neck and spine, working fewer hours, and whatever else you can try that’s job-relevant. This can be frustrating when you’re suffering from pain, but it will help strengthen your case.
In short, the best way to win your case is by providing medical evidence, following doctors’ recommendations, and demonstrating your credibility.
How to hurt your long term disability claim for neck and cervical spine disorders
- Disregarding doctor’s recommendations or missing appointments
- Presenting an incomplete medical file
- Having a negative attitude towards those working on your claim
- Posting photos to your social media of yourself doing physically demanding tasks that contradict your claim
- Missing or skipping doctors appointments
- Unnecessary blocking or stalling of reasonable requests of information
How to improve your long term disability claim for neck and cervical spine disorders
- Present a file full of medical evidence including a diagnosis
- Be cooperative when interacting with those working on your claim
- Follow all doctors recommendations and go to appointments
- Attend physiotherapy and any other doctor recommended treatments
Common reasons for denial of neck and cervical spine disorder claims
Most often, long term disability claims are denied due to a lack of evidence or an incomplete file. Insurance providers will seek out holes and gaps in your claim and use those as a valid reason to deny or cut off your long term benefits. Any missing diagnostic test will be enough for them to deny the claim.
Insurance companies also might deny your claim if they doubt your credibility. If they feel you haven’t done everything you can to stay employed or treat your neck/cervical spine disorder, they will not approve your benefits claim. For these types of injuries, insurance companies will investigate you personally. They will find social media accounts and use that as proof that your condition isn’t disabling enough to keep you from working. It’s essential to back up what you say in your posts and actions.
Your claim could also be denied if the insurance company doubts that you have done everything to stay employed. These companies want to see you using the long term benefits as a last resort. So if you haven’t tried working fewer hours or reducing the impact of your duties at work, they will use this as a reason to deny your claim.
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.
