Julius Melnitzer | June 17, 2019
A recent RBC Insurance Services Inc. study found 45 percent of employees on disability claimed their workplaces pressured them to go back earlier than they felt they were able to do so. This is a significant increase from the 33 per cent of respondents who said the same in the previous year’s survey.
Indeed, there’s a growing tendency on the part of employers and insurers to deny employees’ long-term disability claims, according to claimants’ lawyers. “We have noticed that insurance companies are raising their level of scrutiny and tactics to deny LTD benefits,” says Nainesh Kotak, a Mississauga, Ont.-based personal injury lawyer.
This is counterproductive, says Kotak, noting most people don’t want to be off work, and many would get back on the job more quickly if they were allowed to do so.
But Teri MacDonald, a lawyer at Blaney McMurtry LLP, who represents disability insurers, says that increased scrutiny occurs only when it’s warranted. “The idea that insurance company pressure or delay is somehow preventing people from returning to work as quickly as they might is misplaced.
“The point is insurers can’t take what claimants say at face value because there are many examples of misrepresentations and inaccuracies, and it’s claimants’ obligation to supply the medical documentation supporting their inability to return to work in any capacity.”
That’s easier said than done, says Kotak, noting one reason is doctors tend to be very busy. “Claimant’s physicians are often reluctant to fill out disability forms, and the brief conversations these doctors typically have with disability insurance company staff nurses often leads to mischaracterization of the doctor’s view of the claimant’s work-related restrictions. We are definitely seeing more insurers deny claims based on what they perceive as insufficient medical information.”
The situation becomes more acute when insurers seek independent medical assessments or are asked to participate in rehabilitation programs of the insurer’s choosing, adds Kotak. “Often these doctors are not really independent and will give an opinion that contradicts an opinion from the claimant’s doctor that her patient cannot return to work. The same is true when the insurer chooses a functional ability assessor or rehab program: their reports will not be favourable to the claimant.”
But MacDonald begs to differ. “Suggestions or pressure about participating in a particular retraining or vocational programs occurs only if it is medically supported,” she says. “I haven’t seen insurers insist on such programs or even a gradual return to work unless they have the evidence behind them.”
According to Kotak, the fact that some insurers are resorting to social media scrutiny as an investigative tool also factors into the equation — albeit inappropriately, in his view.
“People are doing things like updating their resumés on sites such as LinkedIn in the hope that they will get back to work even as insurers are using that sort of thing to question whether they’re totally disabled,” he says.
MacDonald notes that times have changed and so have investigative techniques. “Social media is just one of many legitimate tools available to insurers, but I’ve rarely seen it used in isolation when insurers are assessing their exposure,” she says.
“Besides, claimants are putting much less out there than they used to, because, as time goes on, plaintiffs’ lawyers have been aggressively warning them that their posts can be used against them.”