Following your treatment providers’ advice is good for your long-term disability (LTD) claim as well as your health, says Toronto personal injury lawyer Nainesh Kotak.
Employees who are forced off work because of a disability will typically end up seeing many medical professionals for a variety of reasons over the course of the LTD claim process, according to Kotak, the principal lawyer at Kotak Personal Injury Law.
“The role of treatment providers is obviously important because they are there to help the disabled person manage their symptoms and assist with their recovery,” he says.
Understanding contractual obligations
But that’s not the only reason that LTD claimants are best advised to engage in rehabilitative efforts and follow treatment plans set by their medical professionals, according to Kotak, who explains that most LTD policies contain contractual provisions requiring covered workers to abide by the recommendations of their treating practitioners.
“If you don’t follow their plans, then there is a risk your insurer may deny or terminate your benefits on the basis of a policy violation,” he says.
In addition, the common-law duty on claimants to mitigate their damages could come into play if the matter ever ends up in court.
“That’s why we strongly recommend that our clients follow the advice of their treating physicians. It’s not only good for individuals if they can achieve some form of recovery or relief from their symptoms, but it also strengthens their case,” Kotak adds.
Expect to attend insurer-designated programs
In many cases, an LTD claimant’s rehabilitative efforts will be coordinated by their existing treatment providers – including their family physician, mental health counsellor, occupational therapist or any other specialists to whom they have been referred.
A lawyer acting on behalf of an LTD claimant may also suggest seeking an opinion from a specialist practitioner if it could help explain the worker’s medical problem to a skeptical disability insurer.
“Another part of the critical role treatment providers play is to establish evidence in support of a case. Based on their assessments, experts may be willing to provide opinions about the nature of a particular person’s disability and their prognosis,” Kotak says.
However, he says claimants should also expect requests to attend additional rehabilitation programs, staffed and supervised by companies hired by the LTD insurance providers themselves.
“We frequently see this with mental health claims, where an employee refuses to participate in the program set up by the insurer. Then the insurer takes advantage of a provision that allows them to hold the disabled person in non-compliance and terminate benefits,” Kotak says.
Risk of benefits termination
Those with physical injuries could also find themselves invited to insurer-approved “work-hardening” programs, designed to test and develop the claimant’s ability to withstand certain movements and activities that they could come across in a real workplace.
“When people attend, we find they often experience extreme pain during the programs,” Kotak says. “Still, the reports come back from the providers to the insurance companies, saying that the person is able to work, when in fact they can’t.
“In some cases, there appears to be a bias towards the insurer’s point of view, and you end up with conflicting reports from these appointed providers that the insurer has set up, as opposed to relying on the reports of a family doctor who has known the disabled person much longer and has a much better idea of what they’re capable of,” he adds.
Despite concerns about the impartiality of treatment providers selected by insurers, Kotak says claimants have little choice but to attend these programs due to the threat of benefits termination.
“If you’re already in treatment and your existing providers say that is the most appropriate course of action or that the insurer’s proposed program could be damaging to your mental or physical health, then you could make a valid case that it would be unreasonable to attend,” he says.
Claimants assessed via ‘paper review’
Treatment providers could also enter the fray in LTD disputes without ever seeing the claimant in person if their insurance provider opts for what is known as a “paper review.”
This process involves an expert appointed by the insurer who reads all the medical documents associated with a particular file and draws conclusions about the disabled person’s treatment options, rehabilitation progress and prognosis.
“I find it quite unfair that a person who has never even met the claimant should be able to opine that they’re able to work,” Kotak says. “We have successfully challenged those requests in the past, and I think there’s something to be said for an actual assessment as opposed to a review of selective documents.”
If you decide to work with a disability lawyer to handle your denied or terminated benefits claim, he suggests reading the firm’s blog post for tips and key questions to ask a lawyer before hiring one.
KOTAK PERSONAL INJURY LAW/DISABILITY LAWYERS CAN HELP YOU
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