Im seeing that if I refuse a “reasonable offer” of work I will forfeit any severence. I have a lot of pain and fatigue but don’t think an appeal past my “change of defintion” would be sucessful. If I do return and can’t continue will I also lose my severence?
cjc
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Why do you think you won’t make the change of definition hurdle? If your doctor says you can’t work, or the job you can do only pays 65% or less of what you were making before then you definitely meet the change of definition requirments for almost all group LTD policies/contracts.
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NEVER appeal an LTD denial. Always take it to an experienced LTD lawyer to start a claim (aka sue them). Every person I know who has appealed using an insurers process has always been denied over and over again, but every single one got their benefits back or were offered a very good payout as soon as they used the legal system to properly enforce their contractual rights.
Just because an employer says their offer is “reasonable” doesn’t mean it is. If you can’t do their modified work plan day after day, week after week then what they have proposed is not reasonable at all.
Also if your employer terminates you because you currently can’t go back to work right now, then they must to be able to prove your employment contract is frustrated due to your illness being something that will go on for a very long time (years) and that keeping you on the books is causing them undue hardship. If they can’t prove that then the common law dictates you are owed severance (and not just the minimum provincially legislated amounts). It’s a complicated area of the law and requires the help of an experienced employment lawyer.
Good luck.
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Also if you have a good faith attempt at a return to work and it fails because you are not able to do the job, that’s pretty good evidence that you are too disabled to work.
I don’t know the details of your situation. But in general refusing a reasonable offer of work can be seen as quitting the job. If a person quits a job, no severance would be due. Severance is only payable if an employer terminates an employee and wants to pay severance rather than give notice of termination.
David Brannen
Disability Lawyer with Resolute Legal
The response posted above is based on the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with a lawyer, fully explain your situation, and allow the lawyer enough time to research the applicable law and facts required to give an adequate opinion. The basic information provided above is intended as a public service only, a full one-on-one discussion with a lawyer should be done before taking any any action. The information posted on this forum is available to the viewing public and is not intended to create a lawyer client relationship with any person. If you want one-on-one advice, please click here to request a free consultation or call toll free 1-877-917-7050 to speak with a member with our disability claim support team.
Thanks for your reply–I appreciate your optimism.
cjc
Thanks for your reply, Caro.
c
Thanks for your reply, David. Re/ Buckets answer:
- NEVER appeal an LTD denial. Always take it to an experienced LTD lawyer to start a claim (aka sue them). Every person I know who has appealed using an insurers process has always been denied over and over again, but every single one got their benefits back or were offered a very good payout as soon as they used the legal system to properly enforce their contractual rights.
David-Can you tell me if this is possible for a CUPE Local 79 member or does it have to be filed as a greivance? This union does not seem to be responding to my enquires at all.
Regards cjc
HI David
I did see this response–thanks this helps a lot.
"Like Meow said, it’s not automatic that you can’t sue because there is a collective agreement. It depends on the wording of the collective agreement. Your union should be able to tell you your options. A lawyer could review the collective agreement, but its now always 100% clear.
If it turns out your LTD is the exclusive jursidiction of the collective agreement, then you would follow the general arbitration and grievance process set out in the collective agreement. That process is spelled out with specific requirements, deadlines, etc. For that process you are usually required to have union representation (but not always).
Sometimes, the union and LTD plan will set up a separate process for LTD claims that is different than the general grievance process. If that is the case, then you very well may be able to use a private lawyer to represent you in that process. But only if it is separate from general grievance process under your collective agreement.
I hope this helps."
I don’t agree that you always have to sue for an LTD denial. I used to think that ways years ago, but we have gotten many clients approved on appeals without a lawsuit. it really depends on the situation and reasons for denial.
For the second part, having a collective agreement DOES NOT automatically mean you don’t have the right to sue. It depends on the wording of the collective agreement regarding long-term disability benefits. If the wording makes LTD the exclusive jurisdiction of the collective agreement, then you can’t sue.
In each case, a lawyer must review the collective agreement and the LTD plan to determine if the courts have jurisdiction.
David Brannen
Disability Lawyer with Resolute Legal
The response posted above is based on the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with a lawyer, fully explain your situation, and allow the lawyer enough time to research the applicable law and facts required to give an adequate opinion. The basic information provided above is intended as a public service only, a full one-on-one discussion with a lawyer should be done before taking any any action. The information posted on this forum is available to the viewing public and is not intended to create a lawyer client relationship with any person. If you want one-on-one advice, please click here to request a free consultation or call toll free 1-877-917-7050 to speak with a member with our disability claim support team.
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That’s really good to hear. In the LTD Support Facebook group I’m part off no one has ever had any luck in appealing when they’ve done it without a lawyer, but as soon as a lawyer got involved (with the threat of a pending claim) it seems like everyone had their denials reversed or it went to a mediation settlement even though the logic used in the appeal stayed the same before the lawyers got involved. Maybe the lawyers just knew how to word things better. That said, it’s a small pool of people I have reference to, so glad to hear that appeals can work.
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Thanks kindly for your reply, David. Get the sense that said union is so collegial with the employer that they just don’t support appeals. Great to get a clearer picture.
Regards
clive
When I was getting started in LTD I learned from one of America’s best LTD lawyers that “changing the dynamic” is one of the most important parts of getting an LTD claim approved.
When representing yourself in an LTD claim you can get stuck in a situation where you are dealing with a claims representative (appeals team) who’s only incentive is to find ways to deny the claim, or to deny the appeals.
Hiring the right lawyer is one way to change the dynamic. Getting new medical evidence is another. Filing a lawsuit is another.
What each of these has in common is they change the incentives that apply to the claims representative. For example, filing a lawsuit is the best way to change the dynamic because it causes the insurance company to bring in an entirely new team to manage your claim (litigation team).
While the appeals team is incentivized to find ways to deny appeals, the litigation team is incentivzed to find ways to make the lawsuit go away. This is HUGE change. And is why they will approve the claim or do settlements. Also, the litigation team is a fresh set of eyes from people who are much more experienced than the appeals team, so they sometimes will just overrule them.
While the lawsuit is the best way to change the dynamic, you can do the same thing on a smaller scale by hiring a lawyer to deal with the appeals team. The lawyer you hires matters. If the insurance company views your lawyer as credible, it can affect the incentives on the claims rep. They have to report that a lawyer is involved. They will make calculations on how likely it is the lawyer will file a lawsuit etc. Or is it the type of lawyer that just sends threatening letters.
Finally, sometimes a lawyer will know the key fact or evidence that needs to be proven to shift the dynamic. This can happens before or after litigation.
They key point is that there is more at play than just the logic of the arguments. I know people get frustrated by the gamesmanship aspect. But that is the system we have. The key is to focus on what is important to the person who will make the decision to approve or deny your clam (the decision maker). What are the decision maker’s beliefs, expectations, and incentives? You win by presenting your case in a way that meets those three things…for the decision maker you are dealing with. Like I said above once you file a lawsuit, they bring in a whole new decison-maker that has very different incentives.
I’ve written about the above in some of my books. And in a new book that is coming out this year. I hope it sheds light on how things work and how insurance company’s make decisions to approve and deny claims.
David Brannen
Disability Lawyer with Resolute Legal
The response posted above is based on the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with a lawyer, fully explain your situation, and allow the lawyer enough time to research the applicable law and facts required to give an adequate opinion. The basic information provided above is intended as a public service only, a full one-on-one discussion with a lawyer should be done before taking any any action. The information posted on this forum is available to the viewing public and is not intended to create a lawyer client relationship with any person. If you want one-on-one advice, please click here to request a free consultation or call toll free 1-877-917-7050 to speak with a member with our disability claim support team.
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