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Disability battle

Couple looks for answers as insurer threatens to cut off long-term benefits

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Mike and Gina wonder how they can retain her disability benefits. A lawyer specializing in labour and employment law provides some answers.

WAYNE GLOWACKI / WINNIPEG FREE PRESS Enlarge Image

Mike and Gina wonder how they can retain her disability benefits. A lawyer specializing in labour and employment law provides some answers. Photo Store

The last decade hasn't been kind to Gina and Mike. For the better part of it, Gina has been struggling with a health issue that has kept her off her job at a Crown corporation.

Earning about $2,600 a month in disability benefits, Gina's income has helped pay rent and other household costs, especially with Mike being self-employed and earning a variable income that averages about $2,500 a month.

But they now worry things will go from bad to worse after she received notice from the insurance company providing her disability coverage that her benefits will cease next fall.

"(The insurance company) wants to shuffle me onto the government disability," says Gina, in her mid-40s, adding she has already applied for CPP disability and been rejected.

"I'm too disabled to work, but I'm apparently not disabled enough for CPP."

She says she would return to work if she could, providing the workplace accommodates her needs, which would involve moving her to a different position. So far, her employer has been unwilling to do so.

"They're not quite sure what to do with her," says Mike, also in his mid-40s. "Because she's not entirely unemployable, CPP says she can still work, but (her employer) says she can't come back because she can't do the job she was doing."

Already $60,000 in debt, the couple fear slipping through the cracks once disability benefits cease, because Gina is likely too disabled to find work that will replace the income she currently receives.

They do need advice, but they're not certain where to turn, Mike says.

"The picture might not be rosy, but at least we'd have some definitive answers."

Lawyer Bailey Harris, an associate with Thompson Dorfman Sweatman LLP in Winnipeg, practises labour and employment law in Manitoba. She reviewed Gina's situation and has the following advice.

Harris says she would need to examine the details of Gina's disability policy to provide definitive advice, but based on what she has seen, it appears Gina will not necessarily see her benefits end in about nine months.

"Rather, her entitlement will likely be conditional upon providing objective medical evidence establishing that she is unable to qualify for and/or find 'commensurate employment' within the terms of the policy," Harris says.

For the most part, disability benefits are terminated when insufficient evidence exists of total disability or the insured turns 65, at which point coverage usually ends.

" 'Total disability' is typically a defined term under a policy and requires clinical medical evidence that the employee is unable to perform each and every duty of his or her regular occupation or employment," says Harris.

Consequently, whether Gina can continue receiving benefits will likely hinge on medical evidence that would show she is too disabled to work.

"If there is a bona fide medical concern about a return to work, it is generally imperative for the employee to provide clear medical clinical evidence that will establish that a return to work in any capacity is not possible," Harris says.

 

Her doctor would have to prepare a medical report for her insurer indicating she can no longer work at her place of employment in any capacity.

"Medical reports which rely exclusively or heavily on medical opinions rather than assessments of clinical data tend not to be favourably received by benefit providers," Harris says. "The strongest medical report will include objective clinical findings which establish that the insured is unable to perform each and every job duty identified by the employer or benefit provider."

If a medical report can prove she's unable to work in her workplace, her benefits will continue.

Harris says cultivating a good working relationship with her benefits case manager would also benefit Gina's cause.

"If an employee is difficult to communicate with or is frequently late in attending scheduled meetings or conferences, it may become increasingly difficult to garnish the appropriate support of the case manager, which can go a long way in ensuring ongoing entitlement to LTD benefits."

Regardless, Gina's benefits will cease if she cannot perform the duties of her current job, but could reasonably work at another position with her employer.

In that case, her employer is legally obligated to find her a position suited to her abilities.

"With respect to Gina's employer's duties, all employers have a duty to accommodate an employee's illness or disability up to the point of undue hardship."

What constitutes "undue hardship" has been the subject of many court battles. Generally, an employer would not have to accommodate an employee if it would excessively hamper the operations of a business, place the business under undue financial hardship, or if even with the changes, the employee could not return to work in the foreseeable future.

"Given the size of Gina's employer, I find it surprising that it has concluded that there are no positions available for her," Harris says.

If it could reasonably accommodate her but has failed to do so, Gina should contact her union representative to file a grievance.

"If the union refuses to represent Gina, she may initiate an unfair labour practice and allege that the union has breached its duty of fair representation," Harris says. "This process will require Gina to file an application with the Manitoba Labour Board and may result in a hearing before the board."

If successful, the union could be ordered to file a grievance on her behalf.

Harris says workplace disability disputes can be difficult and long processes for the individuals involved, and Mike and Gina likely face a challenging road ahead.

But at the very least, based on the evidence presented, Harris says they have options.

"The process can be very cumbersome and can often evolve into difficult procedural obstacles," Harris says. "The onus is ultimately on Gina to seek out appropriate medical and legal assistance to help her manoeuvre around those obstacles."

giganticsmile@gmail.com

Republished from the Winnipeg Free Press print edition December 21, 2013 A1

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