27 Sep What to expect when illness or injury prevents you from going back to work

Carmen’s disability benefits are about to be cut off. What are her options?

Q. I’ve been on leave because of a health problem. My disability benefits are going to be cut off, but I’m not yet able to go back to work. What do I do?
–Carmen

A. Carmen, this is a fairly common situation. However, there’s no easy solution.

I’ll start by saying that whether an employee is unable to return to work because of an injury or a health problem is a question for a doctor to answer. I normally tell clients that the best way to think about this is that a doctor’s opinion is all that matters when it comes to whether they are disabled and unable to return to work; not their opinion, or their lawyer’s opinion or their boss’ opinion. This is a medical question.

It’s also important to understand that being unable to work because you are disabled, and being able to return to work with some accommodations from your employer are completely different positions. Let’s walk through each of them.

1. Disabled and cannot return to work

I’m not sure where you live, Carmen, but in my home province of Ontario, for example, there are a number of different sources of “disability” payments: private (short-term or long-term) disability benefits, Ontario Disability Support Program (ODSP), CPP, EI and the Workplace Safety and Insurance Board (WSIB).

However, the basic concept of each system is that it has a definition of “disabled” that needs to be met in order to require a payout of disability benefits to the employee. Employees apply for benefits based upon their belief that they meet this definition, the application is reviewed and benefits are paid out or denied. If you are denied, there is a process you can follow to appeal, if you wish.

In each of these systems, the acceptance of an application requires medical evidence that establishes the employee meets its definition of disabled. Typically, the denial letters state something along the lines of: “The medical information that you have provided does not establish that you meet the definition of disabled, please send us medical information that establishes that you meet this definition.” The denial letters do not say you are not disabled.

If you are accepted as meeting the definition of disabled and payments begin, you also need to continue to meet the definition of disabled. These systems each involve some sort of ongoing obligation to provide medical information if the benefit provider requests it. The review of the new medical information can result in a decision to stop paying disability benefits.

It is also worth noting that under most long-term disability policies, the definition of disabled changes after two years. Every policy is a bit different, but the definition of disabled in most policies is that the employee is unable to do their own job for the first two years and then, after two years, that the employee is unable to do any job that matches their qualifications. The second definition is much harder to meet and that is why it’s in most policies. It’s very common for employees to be paid for the first two years without much resistance, but to then be cut off at the two-year mark.

There are long-term disability policies out there that use only the employee’s ability to do their own job as the definition of disabled, but these are much more expensive to purchase. With that being said, though, they provide much better coverage.

2. I don’t think I can return to work, but I don’t meet the definition of disabled

As I mentioned earlier, it’s very common that employees are cut off or denied disability benefits, but are not up to returning to work yet.

Keep in mind that although the definition of disabled is different for each of the systems mentioned above, all definitions generally mean that the employee can’t return to work, not that it will be (very) difficult for the employee to return to work.

If the decision is that the employee will attempt to return to work, the employee will need to meet with their doctor to define the employee’s ongoing limitations so that their employer can be asked to accommodate these limitations.

Making these accommodations is often rather inconvenient for the employer as compared to using an employee who does is able to work without any restrictions. However, employers have an obligation to make reasonable efforts to accommodate an employee. This is your right as an employee.

Unfortunately, many employees are terminated shortly after they return to work, which is where I often get involved.

In some more extreme cases, I have even acted for employees who were terminated upon asking for their employer to make accommodations in order for them to return to work.

If an employer elects to terminate the employee rather than make these reasonable efforts to accommodate the employee, the employee is entitled to damages for their employment having been terminated (like any other employee), and they are also entitled to damages for the employer having breached the Human Rights Code. The amounts awarded for this kind of breach of the Code have been increasing over recent years. While each case is different, this component of the employee’s damages can easily exceed $10,000.

Scott Hawryliw is a civil litigation lawyer with SRH Litigation in Barrie, Ont. He helps clients with legal problems related to injuries, employment and business issues, and can be reached at scott@srhlitigation.com