Fighting a disability claim denial during COVID-19? Here’s how to choose the right lawyer

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Mental health experts say the coronavirus pandemic could have long-term effects on people’s mental health. According to a recent survey, the majority of Canadians found that the pandemic had already negatively affected their mental health, and people with anxiety say it’s made their symptoms worse.

It could also mean that more Canadians need to use disability insurance.

Employees with an illness or disability, however, often encounter difficulties with both their long-term disability insurers and their employers. If your disability claim is denied, this is when a lawyer can help — and choosing the right lawyer can make a difference.

READ MORE: Coronavirus: How to use disability insurance if your mental health is suffering

Having a law firm that specializes in both disability and employment law can maximize the amount of money a disabled employee can recover. Firms with a dual specialty can also help avoid common pitfalls that may come with choosing a lawyer who does not understand both areas of law.

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Here are three of the most common mistakes when it comes to making disability claims.

Mistake #1: Failing to understand how severance affects long-term disability claims

Employment lawyers representing employees with disabilities often do not understand that most long-term disability insurance policies have a provision that entitles the insurer to a credit for any severance the employee receives.

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In these cases, any severance pay recovered usually goes to the insurer, and the employee receives none of the money.

There are legal ways to minimize this problem or avoid it altogether, but they require an understanding of both employment law and disability law, and how they work in tandem.

Mistake #2: Failing to properly review a final release following termination of employment

Many employment lawyers will let clients with a disability sign “full and final” releases as part of severance negotiations if the employee is dismissed from their job. These releases, however, often take away the employee’s right to claim short- or long-term disability.

Signing the release can cost the employee tens and even hundreds of thousands of dollars that they otherwise could have received from their disability insurance plan.

Lawyers with knowledge of both disability and employment law can negotiate the wording of the release to avoid a situation where the employee loses the support of disability insurance benefits.

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READ MORE: No job and no EI — but she can’t access the new COVID-19 benefit

Mistake #3: Failing to understand a return to work program

Return to work programs are another commonly misunderstood part of the disability claim process. They’re often initiated by the disability insurer, with or without coordination from the employer.

Returning to work can be a complicated issue for employees who are not ready to go back to work but are being pressured by their insurer or employer to try, or who have tried to go back to work but are unable to do so.

In these situations, insurers may refuse to reinstate the employee’s benefits and put them back on long-term disability, so lawyers need to understand the recurrence clauses in long-term disability policies. (In many policies, these clauses say that if an employee’s condition comes back within a certain period of time, they can receive long-term disability benefits again without having to submit a new application.)

Lawyers also need to understand the employer’s obligations, as employers sometimes fail to accommodate the employee’s disability.

The employee could potentially have a legal claim against the insurer for failing to reinstate their benefits and a legal claim against their employer for failing to accommodate their disability.

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Both claims impact each other and the relationship between the employee, the employer and the insurer.

At Samfiru Tumarkin LLP, we focus only on two areas of law: disability law and employment law. Our radio and TV programs educate people in Ontario and British Columbia about their employment and disability rights.

Sivan Tumarkin is a disability lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in disability claims and employment law.

Visit their website to learn more about your rights around disability claims.