Can photographs be relevant to a disability claim? The answer is yes. For example, if a disability claimant makes a claim for severe depression and tells the adjudicator that they never socialize and rarely leave their home, photographs of the claimant attending numerous social gatherings during the time she claims to be disabled would most likely be deemed relevant. While the photographs may not prove that the claimant is capable of working, they would potentially speak to the credibility and truthfulness of the claimant - both important factors in disability claims.

While photographs can be relevant to the issue of credibility, they have limited impact upon the issue of disability itself. A photograph is only a snapshot of a particular moment of time - you cannot reliably extrapolate functional abilities from them. For example, a photograph may show a disabled claimant suffering from fibromyalgia and chronic fatigue syndrome posing by a famous landmark while on vacation. The only reliable evidence obtained by that photograph is that the claimant at some point visited a landmark on a particular day and time. It does not prove she can perform her job duties on a full-time basis.

Unfortunately, however, photographs can have prejudicial impact even if they are not relevant to the issue of disability. The real danger exists that an insurance company will make improper assumptions and draw inaccurate conclusions from a photograph.

Courts in Ontario have held that photographs and other information posted on an online Facebook profile can be produced in court proceedings and used as evidence. To avoid an insurance company potentially misconstruing photographs or other information posted online, and subsequently using that information to wrongly deny or terminate a claim, it would be advisable for disability claimants to avoid opening social media accounts such Facebook, Twitter, etc.

If you already have an online profile, it would be advisable to cease updating it or adding photographs to it. It would also be advisable to restrict the account such that it is only accessible by your friends and family, and not accessible by members of the public.

If you already have an online account, are you permitted to delete it? The answer: it depends. Certainly if you are involved in litigation against the insurance company you are not permitted to destroy evidence relevant to the issues in the lawsuit. Deleting or destroying relevant photographs or deleting an online profile with relevant information could possibly be held against a claimant in court. However, there is no legal prohibition against closing a Facebook account for reasons other than to destroy evidence. In the recent decision of Schuster v. Royal & Sun Alliance, Justice Price stated, “There are many good reasons unrelated to litigation that people may have to withdraw documents from their friends’ view. Their right to do so should not be lightly interfered with.” Thus, a disability claimant has the right to close his or her Facebook account simply because they are no longer interested in participating or because they no longer wish to share information or photographs with friends and family.

If your disability claim has been denied or your disability benefits have been terminated, contact my Ontario disability law office for a free consultation regarding your legal rights.

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Is activity noted on surveillance sufficient to justify the denial or termination of a disability claim? Certainly the answer would depend on the type, frequency, and duration of the activity, as well as the nature of the claimant’s disability. However, surveillance often has only limited relevance to the question of whether a claimant is truly disabled.

Firstly, surveillance is usually conducted over a relatively brief period of time – most commonly 3 or 4 consecutive days. If a disabled person is shown to be active during that time, it does not necessarily mean that the person is capable of being active all the time. Many disabilities are of fluctuating severity such that people have “good days and bad days”.

Secondly, activities shown on surveillance are usually brief in nature and not indicative of whether is someone is capable of working. Surveillance showing a person walking their dog in the morning, shopping for groceries, or mowing the lawn is usually not sufficient to prove that they are capable of working 8 hours per day at a full-time job. Also, the surveillance will not show what is happening inside a claimant’s home after they return from their activity – many individuals will be completely exhausted and unable to do anything else but rest.

While surveillance is often not relevant to the issue of whether a person is disabled, it can be relevant to the issue of a claimant’s credibility. If a claimant tells their case manager that their condition is so severe such that they are always bed-ridden, surveillance showing the claimant active outside their home will be damaging to the claimant’s credibility. Likewise, if a claimant states that they are unable to drive a car, video footage proving otherwise will be damaging to the claimant’s credibility. If the insurance company can establish a claimant is not credible, it will have a negative impact upon a claimant’s chance of success at a trial.

If your short-term disability (STD) claim or long-term disability (LTD) claim has been denied on the grounds of surveillance evidence, do not lose hope. A court of law may strongly disagree with an insurance company’s interpretation of surveillance data. Also, in some cases, the investigator may have obtained footage of the incorrect person. Contact my office for a free consultation with an Ontario disability lawyer regarding your legal rights.

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 Undergoing regular treatment and visits to your doctor help to demonstrate to the insurance company that you are suffering from a valid disability and are therefore unable to work. Also, many short-term and long-term disability policies contain clauses that require claimants to be under the regular care of a qualified physician in order to qualify for disability benefits.

 It is important to continue getting medical treatment even if your disability claim has been denied. A court or tribunal is much more likely to find a disability claimant as being credible if there is evidence that he or she has been regularly seeking treatment for their sickness or injury.

 Family physicians are critical as the first-line of treatment for a disability. However, it is also important to seek the care of a specialist when appropriate. For example, while a family doctor is trained to treat a patient suffering from depression, a disability insurance company will likely expect that a disability claimant with severe depression receive treatment from a psychologist or psychiatrist.

 Of course, the largest and primary benefit to maintaining regular treatment is (hopefully) an improvement in health and function such that you can resume your life and career.

A “restriction” refers to tasks or actions which a person is unable to do as a result of a medical condition. For example, a person who suffers from a severely herniated disc may be restricted from bending, pulling, pushing or lifting over 15 pounds. A person with vision problems may be restricted from driving.

A “limitation” refers to a task or action which a person can only do for a certain period of time as a result of their symptoms. For example, a person suffering from musculoskeletal pain or fibromyalgia may be limited from remaining stationary in a sitting or standing position for more than 10 minutes. A person suffering from chronic fatigue syndrome may be limited from doing any type of strenuous physical activity for more than a very brief amount of time.

Thus, when the disability case manager finds no restrictions or limitations, he or she has made the judgment that the claimant is totally capable of performing his or her job duties, even if it is established without doubt that the claimant suffers from a sickness or has suffered an injury. However, the disability insurance company’s position may be unfounded and incorrect from a legal standpoint.

Firstly, the disability case manager may have unfairly underestimated or discounted the severity of the claimant’s medical condition. A disability insurance company will usually rely upon the opinion of internal medical staff to decide on restrictions and limitations. However, these professionals only conduct a paper-review and do not examine or even speak with the claimant. A court of law will most likely prefer the opinion of the claimant’s own doctors who have examined and treated the claimant.

Secondly, the disability adjudicator may have an inaccurate or incomplete understanding of the claimant’s job duties and their physical and mental requirements. This can result from wrong information provided by the HR department of the claimant’s employer - often when the employer is not supportive of the disability claimant’s inability to work.

If your short-term or long-term disability claim has been denied on grounds of “no restrictions or limitations”, contact my disability law office for a free consultation with a disability lawyer about your case. A court of law may strongly disagree with the insurance company’s position.

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The definition of disability is the crucial backbone of every disability insurance policy.  Both group long-term disability (LTD) policies and individual policies contain a definition or a test which a claimant must meet in order to be eligible for benefits. The definition can take many forms, but the fundamental elements can be expressed as follows:

Having a sickness or suffering an accidental injury

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As a result of that sickness or injury being unable to perform your job duties.

In some policies, you must be unable to perform all the duties of your occupation to meet the definition. In others, you must only be unable to perform one or more important duty. There may be additional requirements such as being under the continual care of a qualified physician or earning less than a certain percentage of your pre-disability income.  There may also be separate definitions that apply to partial or residual disability.

Note also that most group LTD policies contain a change of definition clause which after a period of time requires you to be unable to work in “any occupation” for which you are reasonably fitted by your training, education and experience.

The role of the insurance adjuster is to gather all a claimant’s medical information and determine whether the claimant’s condition or symptoms prevent them from performing their occupational duties. Sometime this is expressed as having restrictions or limitations on the ability to work.

In the course of assessing a disability claim, insurance adjusters will usually have the claimant’s medical information reviewed by medical professionals employed by the disability insurance company.  These professionals may include nurses, rehabilitation consultants, and physicians of various specialities.  The purpose of the review is to obtain an opinion as to whether the medical information on file supports the inability of the claimant to perform their job duties.  Note that these professionals only conduct a “paper-review” of the medical information and do not examine the claimant themselves.  If the company wishes to have a claimant examined, they will hire a physician to perform an “Independent Medical Examination”.

How do courts interpret the definition of disability? The Supreme Court of Canada in the 1983 case Paul Revere vs. Sucharov adopted the following interpretation which has been followed by courts across Canada :

“The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so.  In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure; hence, if the condition of the insured is such that in order to effect a cure or prolongation of life, common care and prudence will require that he cease all work, he is totally disabled within the meaning of health or accident insurance policies.”

If your disability claim has been denied because the insurance company does not believe you meet the definition of disability, contact my law office for a free consultation regarding your legal rights.  A court of law may strongly disagree with the disability insurance company’s definition of disability.

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However, most group LTD policies contain a “Change of Definition” clause. This clause states that after a period of time (commonly two years), the definition of the term “disability” changes such that you no longer qualify for benefits if you are able to perform “any occupation” for which you are reasonably fitted by way of your training, education and experience.

Take the hypothetical example of Tom the Mechanic. Tom has been a mechanic for 20 years when he begins to develop Rheumatoid Arthritis in both his hands. Tom struggles to perform his job but eventually he is unable to repair cars any further and submits a disability claim to the group disability insurance company.  After reviewing the medical evidence, the insurance company accepts Tom’s disability claim and commences paying monthly benefits.  However, after two years the insurance company cancels Tom’s benefits citing the Change of Definition Clause.  While they agreed that Tom could no longer work as a mechanic, the insurance company felt that Tom could perform the job of a parking lot attendant.

Can the insurance company rely upon the Change of Definition clause to terminate Tom’s benefit? 

Firstly, they would have to prove that Tom is reasonably suited to work as a parking lot attendant because of his training, education, and experience.  This is not the same test as proving that Tom is capable of being a parking lot attendant. A doctor or engineer could likely also be a parking lot attendant but that doesn’t mean they are reasonably suited for that occupation. As one court states, the alternative occupation must be “reasonably comparable” to the insured’s former occupation in “status and reward”.

In this example, I believe Tom would have a strong legal argument that the job of a parking lot attendant is significantly lower in both status and pay than that of an experienced mechanic.

The insurance company would also have to prove that Tom’s Rheumatoid Arthritis does not prevent him from being able to perform the tasks of a parking lot attendant. If Tom’s condition has progressed such that he is unable to use his hands, he would have a strong legal argument that he cannot perform the exchange of money or tickets and thus could not perform the job.

If your group LTD insurance company has terminated your disability claim citing the Change of Definition clause, you should know that a court of law may strongly disagree with the insurance company’s position.

Contact our disability law office for a free consultation regarding your legal rights.

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