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The question

I worked at the same medium-sized company for more than 15 years selling insurance. I began experiencing increased stress from customers, co-workers and superiors. I was seeing my doctor to deal with my anxiety and also attended counselling and group therapy. Despite this, I was not able to cope. My doctors supported the fact that I wasn’t able to work. However, I was denied long-term disability benefits because my insurer claimed I had insufficient medical evidence and was not doing enough to recover.

The first answer

Nainesh Kotak, founder, Kotak Personal Injury & Disability Law, Mississauga

Unfortunately, this type of response is too common. Insurance companies, who have a duty to handle all applications in good faith, will tell a claimant that he or she does not have sufficient medical evidence, despite that person having submitted a doctor’s report outlining the symptoms that prevent them from working as well as the treatments they are undergoing. Insurers can be especially difficult with mental illness because there is no blood test or scan to diagnose it. So, insurance companies think it is easy to disprove.

When you receive a denial letter, your disability insurer may advise you that you can file an internal appeal. However, you will rarely get a different outcome. The insurer has denied you once so the chances of someone else internally reaching a different decision are slim. The best thing to do is consult a disability lawyer. They will assess your case and, if reasonable, help you start a lawsuit against the insurer for past and future amounts owed to you.

It’s important to note that, under most disability policies, the definition of disability changes after one or two years. For the first one or two years (depending on the policy), you have to prove you are unable to do your own job. After that, you have to prove you are disabled from doing any job that you are suited for based on your training, education and experience. Your lawyer can help you understand your policy and the tests you have to meet.

The second answer

Rebecca Saturley, managing partner, Stewart McKelvey, Halifax

The key is good communication – but if you are struggling to cope with anxiety and stress, this can be challenging. If you are unable to effectively communicate for yourself, find someone who can advocate for you such as a family member, an employment lawyer or an HR representative from your company.

Start with your insurance provider. There is usually an ability to provide additional medical information through the appeal process to support your claim for disability. Work with the insurance provider to understand the gaps in the information you have presented. Work with your physician to ensure they clearly communicate why you cannot return to work with specific information on diagnoses and limitations.

At the same time, you need to make sure the employer understands what is happening. If you have been turned down for long-term disability and you do not return to work, your employer may claim that you have abandoned your employment. Abandonment is equivalent to quitting – you would not be entitled to any compensation.

If you are not successful in changing the long-term disability decision, ask your employer for a leave of absence until you are ready to return to work. This may require you to provide medical information to your employer. This leave may be unpaid (although you may be able to access EI sickness benefits), but it will provide you with an opportunity to heal so that you can return to work.

Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com

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