Totally Disabled: What It Means
Many disabled people are denied long term disability because their insurance companies say that they are not ‘totally disabled’. What does that term mean anyway and can the disabled person do anything about the insurer’s denial? The answer to the latter part of the question is “yes!” It is important to understand that the term totally disabled is a legal term of art.
In other words, it doesn’t mean what a lay person may think it means. It doesn’t mean being unable to do anything. It doesn’t mean that you have to be paralyzed to qualify. If that was the case, virtually no one would ever qualify for long term disability. The legal criteria for ‘totally disabled’ is a much lower threshold. In a famous Supreme Court of Canada ruling, Chief Justice Laskin explained that total disability should not be taken literally. He stated:
“The test of total disability is satisfied when the circumstances are such that a reasonable [person] would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure; hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease all work, he is totally disabled within the meaning of health or accident insurance policies.”
This means that even if you are able to do some of the tasks of your job, you can still be considered to be ‘totally disabled’ and qualify for long term disability. Moreover, you could even be able to work part-time and qualify. Working in and of itself does not disqualify you from meeting the definition of ‘totally disabled’.
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The purpose of insurance is to give us peace of mind. It is there to provide a ‘safety net’ in the event that we are too ill or injured to work. Unfortunately many insurance companies are too quick to pull the trigger and deny or cut off long term disability payments to individuals who are down on their luck and who need help to get better so they could come back to work.
- READ: Not paralyzed enough: N.S. man sues to be recognized as paraplegic after insurance claim denied
We have helped many disabled individuals successfully challenge insurers’ denials of long term disability claims. Our success comes from 3 things:
- Making sure that we provide the necessary medical documentation to the insurers, in support of the claimant’s disability;
- Speaking the language of the insurer to make sure that the interpretation of the disability policy is accurate and just; and,
- Giving insurers no leeway. We make it clear that either the disability policy is upheld and payments are made, or we use the full force and weight of the law to force them to pay.
The result is always positive for our clients. A disabled person is owed this compensation and there is no reason why the insurer should keep the money.
Always remember: You may be David and the insurance company is Goliath, but always remember who won that battle!It is important to understand that the term 'totally disabled' is a legal term of art. Click To Tweet
Sivan Tumarkin is partner at Samfiru Tumarkin’s Labour and Employment Law Practice Group in Toronto, Ontario.
If you or someone you know has questions about long term disability, go to www.mydisabilityquestions.com to ask those questions and receive answers for free! And listen to the Insurance and Injury Law Show on radio AM640 Saturdays at 6pm and Sundays at noon. To hear past shows, go to www.insuranceandinjurylaw.com.