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3 Challenges with Long-term Disability Appeals during COVID-19

By David Brannen

Did the insurance company just deny your claim for long-term disability benefits? Has the insurance company said your monthly payments will stop soon? Are you wondering how to appeal the claim denial in this COVID-19 environment?

In this article, as part of our COVID-19 resources, I review how the pandemic has made it even harder for people to win appeals of denied disability claims. I discuss three common COVID-19-related challenges and give tips for how you can overcome them. 

I’ve previously written a 7-step method anyone can use to appeal a denial of long-term disability benefits. You should read that article too; I believe the method I outlined continues to be the best practice for people who represent themselves. However, COVID-19 presents new challenges — so let’s discuss these and learn how you can overcome them.

Before we get into the challenges and how to overcome them, I want to let you know that the rules for disability appeals have not changed. These rules come from the wording and clauses of the insurance policies, so they are written in stone:

  • You have an obligation to prove your ongoing eligibility for long-term disability
  • You have an obligation to be under the regular care of a doctor
  • You have an obligation to engage in recommended treatment
  • You have to pay the costs for medical records and reports to prove your claim
  • You must demonstrate best efforts to get well and to try to return to work
  • The insurance company must consider your appeal in “good faith”
  • The insurance company must give you reasons for denial

Following are the common challenges you may face in appealing a denied disability claim during the COVID-19 pandemic — along with our advice for how to overcome them. 

Challenge 1: Your insurer asks for health records, but you can’t get them

When an insurer denies a claim for long-term disability benefits, it is common for them to ask that you provide copies of health records as part of the appeal. Health records are the file of notes, tests results, and reports created by your doctors and other health professionals. All health professionals are required to keep health records of your treatment — this includes your doctors, psychologists, physiotherapists, or hospitals you have attended. 

In normal times, you would just ask your health professionals or health organization to give the insurance company a copy of your health records. But what do you do now that many offices and clinics are closed or operating on reduced hours because of the pandemic?

If you don’t provide the records, many insurance companies will either delay making a decision on your claim (and continue not paying you), or they will deny your appeal based on a lack of evidence. 

Solution

It is critical that you make best efforts to obtain the requested health records — and that you can show that you’ve made the efforts. Create a paper trail of requests for the records. Save copies of any letters or emails you send when you request health records. If you can only make requests by phone, keep a log of the dates you made calls, if they went through, and what was discussed during the calls. 

Many doctors and health professionals maintain electronic records, so they may be able to print them off for you. Tell your doctor or specialists that they have your permission to send electronic copies by email or other source. Another alternative is to ask the doctor if they could write an email or letter summarizing your visits, diagnosis, treatment plan, current response to treatment, and future treatment plans.

If the doctor or provider can’t get you the records or a report because of restrictions imposed by the pandemic, ask them to confirm this in writing. You have an obligation to prove your disability claim and to use best efforts to get information requested by the insurance company. It is not enough for you to tell the insurance company you have tried; you need to show that you have done everything possible to get the requested records. A paper trail is the best way to show that you’ve done this. 

Challenge 2: The insurance company says you can work, but your job isn’t available

It is common for insurance companies to deny a disability claim or stop payment of benefits because they believe you should be able to return to work. What usually happens is the insurance company hires a rehabilitation or vocational expert who recommends you try to return to work on a “gradual” basis. This is referred to as a gradual return to work — you might see it written as “GRTW” or just “RTW.” It simply means that, rather than return to full time work immediately, you will start back at reduced hours and gradually build up to full time hours. 

We normally recommend that you try the gradual return to work, even if you believe it won’t be successful. It is most important that you show you are making every effort to return to work, so participating in gradual return to work programs is important. Even if it turns out to be unsuccessful, at least you can say you tried. 

A big challenge right now is that many people are being laid off and have no job to return to. If you’ve been laid off, your employer likely won’t agree to you doing a gradual return to work — at least not on the insurance company’s timetable. What can happen is the insurance company will stop payments on the grounds that they believe you can work, and that the only reason you are not going back to work is because you are laid off and have no job to return to. The insurance company will say that your lack of job opportunity is not their problem, and will stop payments because they insist that you have the ability to work. 

If you have received long-term disability benefits for two years or more, the inability to return to your usual job becomes irrelevant. Most group insurance policies have a clause that says they only have to keep paying after two years if you can’t return to doing “any” type of work. Again, the insurance company will insist that there is “other” work you could do, and the only reason you are working is because of a lack of job opportunities in the current economic shutdown. 

Solution

The solution to this challenge will depend on how your doctor and other treatment providers view your ability to work. Does your doctor believe you are completely unable to return to any type of work? Do they think you can return to some other employment? Or is your doctor on the fence and believes you should try to return to work to see how it goes?

If your doctor believes you can’t return to any type of work, get their statement in writing so you can give it to the insurance company.

If your doctor thinks you can work or should at least give it a try, then you need to make best efforts to arrange a gradual return to work with your employer, or to seek out work with other employers. You should document your efforts to show that you tried. 

If there are simply no work opportunities, then seek out a volunteer position with duties that resemble what you would need to do in a workplace. You can apply the same gradual return to work principles to a volunteer position: Start working a few hours and see if you can gradually increase your hours over time. Again, you’ll want to create a paper trail to show how things were going. Ideally, you should be checking in with your doctor so they can document how the volunteer work is affecting your symptoms. The doctor can then make recommendations to continue trying or to stop immediately. 

Challenge 3: You can’t participate in recommended treatment or assessments 

You have an obligation under the insurance policy to participate in ongoing treatment. This can include treatment or assessments recommended by your doctors or the insurance company. Insurance companies will deny long-term disability claims when they view a person as not participating fully in all recommended treatment. In fact, this is their favourite reason to deny a claim because it's a way to deny a claim for a person who otherwise meets all the criteria for payments. 

There are two scenarios you may find yourself in currently. First, you may not be able to attend because the treatment providers offices are closed. As of April 2019, all provinces and territories are under states of emergency. This means only essential services are allowed to be open to the public. While doctors and hospitals are essential, most treatment providers are deemed nonessential and are required to be closed. This includes physiotherapists, occupational therapists, chiropractors, psychologists and others. 

Second, the insurance company may arrange for you to be examined by a doctor, but you may have concerns about leaving your house. Can you decline to attend appointments arranged by the insurance company? The answer is a possible yes — if the assessment isn’t deemed as essential medical care. However, if the insurance company arranges for this assessment to be done by phone or video, you should agree to attend.

Solution

You need to show that you have really tried to do the recommended treatment or assessments. Many treatment providers are offering services via phone or by video conference. You need to show that you asked about these options. If these services are unavailable, at least you can show that you made all efforts to find solutions. Again, it is critical that you document your efforts so you can show that you tried.

If you can show you tried everything to find treatment solutions, it will be hard for the insurance company to deny benefits based on the grounds that you failed to participate in treatment. Even if they did, we believe this could be overturned on appeal if you can show you used all efforts to receive the treatment by phone or video. 

Next Steps

If you need to appeal a long-term disability denial, you can download our checklist for free. This list outlines our exact process when we take on a case.

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And, if you're not ready to take it on alone, feel free to reach out to us for a free consultation

David Brannen
Founder & Managing Lawyer, Resolute Legal
As Resolute Legal's managing lawyer, David spends his days representing people with disability claims and overseeing other disability lawyers within the firm. David is a former occupational therapist and is one of the few lawyers in Canada who focus exclusively on disability-related claims. David is the author of A Beginner's Guide to Disability Insurance Claims in Canada and The Beginner's Guide to CPP Disability.