By Nainesh Kotak
Long-term disability (LTD) benefit denials based on pre-existing conditions do not have to be the end of the road for injured workers in need of benefits.
Although the terms of each LTD group policy will differ, almost all include an exclusionary provision preventing claimants from obtaining benefits for an illness or injury related to a pre-existing condition. Broadly speaking, a pre-existing condition will be one for which an insured person has previously sought treatment, medication and/or medical services, and that can be linked or related to the current ailment preventing them from working.
The exclusionary period during which the treatment, medication and/or medical services were sought varies depending on the policy. The most common pre-existing exclusion clauses give the insurer the right to investigate and inspect an insured person’s medical history if they initiate a claim within the first year of coverage, and the pre-existing period looked at is typically 90 days prior to the date the person’s insurance for LTD benefits became effective.
The denial landscape
There is an undoubted rationale for these clauses — insurers should not be forced to pay out benefits to a person whose sole purpose in gaining coverage is to immediately make a claim based on a known medical issue.
However, the problem is that many providers are on a hair trigger, itching to invoke the exclusion for any old conditions or treatment they can find evidence for — however loosely they may relate to the current LTD claim.
For example, an insured person who is unable to work because of a back injury could find their LTD benefits denied because they were prescribed pain medication during the exclusionary period without their insurer delving into any further details to determine whether the treatment is related to the same injury or condition.
Sadly, those with mental health-related LTD claims are most likely to be victims of this kind of conflation. An increasing number of disability cases involve a psychological aspect, and although society has come a long way in its treatment and understanding of those with mental illnesses, there remains a significant stigma.
The insurance industry, in particular, seems to lag some way behind when it comes to appreciating the debilitating impact of conditions such as anxiety, depression, post-traumatic stress disorder and obsessive-compulsive disorder.
Judging by their approach, insurance companies seem to have even less interest in the nuances of these conditions, instead lumping them unfairly together as a group of interrelated pre-existing conditions.
For example, it would not be uncommon for an individual who is unable to work because of a diagnosed depression to have their claim denied under the pre-existing condition exclusion because of an earlier visit to the doctor regarding concerns over their anxiety.
Whatever the specifics of your own policy, you can bet that your LTD insurance provider will interpret the pre-existing condition clause as broadly as it can, in order to avoid paying benefits. For example, some insurers may interpret the policy such that mere consultations with a family doctor or other healthcare professionals regarding certain conditions will be enough to invoke the exclusion, even if the patient never received any treatment as a result.
Don’t take your insurer’s word for it when they say your claim is excluded because of a pre-existing condition.
At Kotak Law, we have been able to help clients get around the pre-existing condition clause in the appropriate circumstances, where the insurer has applied the provision too broadly or unfairly.
When claims are denied on this basis, we start by collecting the client’s medical records, so that we can get a full picture of exactly when any consultations, diagnoses and treatment occurred.
In many cases, we find that insurers have effectively manufactured pre-existing conditions in situations where workers suffer from multiple, unrelated conditions. In other cases, we find that the denial can not be supported in the circumstances after a careful reading of the LTD policy at play, or as a result of ambiguities in its specific wording.
Either way, it is important to act quickly to minimize the chances of an interruption in payments. Your LTD provider may inform you of an internal appeal route to challenge the decision, but this procedure is generally futile.
Insurers — like students grading their own tests — don’t tend to find much fault with their original answers, so denials are rarely overturned by way of internal appeals. We find that proceeding quickly to litigation with the issuance of a statement of claim is more effective at moving the case along.
KOTAK PERSONAL INJURY LAW/DISABILITY LAWYERS CAN HELP YOU
We understand that being denied short-term disability or long-term disability benefits can be devastating. Your time to fight your disability insurance company is limited. Please do not delay in calling a short- and long-term disability claim lawyer at Kotak Personal Injury Law. We have successfully sued numerous disability insurance companies including Manulife, Sunlife, Desjardins, Cigna, Great-West Life, Equitable Life, Empire Life, London Life, Blue Cross, AIG, SSQ, RBC, Industrial Alliance, Canada Life, Fenchurch, OTIP, Teachers Life and more.
Call your trusted long-term disability lawyers at 1-888-GOKOTAK or (416) 816-1500. Our consultation is free, and we don’t get paid until you do. We represent disabled people throughout Ontario including Toronto, Mississauga, Brampton, Milton, Georgetown, Orangeville, Oakville, Burlington, Hamilton, St. Catharines, Niagara Falls, Stoney Creek, Kitchener/Waterloo, Cambridge, London, Windsor, Markham, Pickering, Oshawa, Peterborough, Fort Erie, Keswick, Kingston, Ottawa, Barrie, Timmins and other locations.