Warren Berg: 0:00

Good morning and welcome to the April edition of Ask the Lawyer across Alberta on Winspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us this month again are Cynthia Carels and Michael Shepherd of Weir Bowen LLP in Edmonton.

Cynthia Carels: 0:14

Very nice to see you again.

Cynthia Carels: 0:14

Warren.

Mike Shepherd: 0:16

Thanks for having me, happy to be here!

Warren Berg: 0:18

Weir Bowen is an Edmonton-based law firm. However, their lawyers have represented clients across Alberta, bc, Saskatchewan and the Northwest Territories and have been counsel in precedent-setting cases all the way up to the Supreme Court of Canada.

Mike Shepherd: 0:30

Absolutely. We've all been shaped by the incredible legacy of the Weir Bowens founding partner and by the many talented lawyers who have joined and strengthened the firm over the years.

Cynthia Carels: 0:40

Yeah, and that legacy really continues to be recognized. In fact, many of Weir Bowens' lawyers have consistently been named to the Best Lawyers in Canada list, which is an honor that really reflects the respect of our peers across the legal community, and this year we're actually also proud to share that. Three Weir Bowen lawyers have been recognized in the Canadian Legal Expert Directory either as repeatedly recommended lawyers or consistently recommended lawyers, and they're being recommended by fellow lawyers within the legal community as well as firm leaders in our areas of practice.

Warren Berg: 1:15

Sounds very impressive. Now are you able to share who's being honoured in this year and what areas of law they covered?

Cynthia Carels: 1:21

Yeah, for sure. So the news is out now that a good friend of our Ask the Lawyer show our very own, Shelagh McGregor, is being honored both in the personal injury and medical negligence areas, exclusively for the work that she does on the victim sides of these very challenging cases.

Mike Shepherd: 1:38

In addition, one of our longest serving lawyers, who joined Weir Bowen in 1991, is again on the list of consistently recommended medical malpractice lawyers and repeatedly recommended for personal injury litigation.

Warren Berg: 1:51

And who is that?

Mike Shepherd: 1:52

His name is Joe Miller and I think everyone on our team at Weir Bowen has benefited from Joe's wealth of knowledge and experience. He's prosecuted some of the largest injury claims in Alberta's history, including a number of extremely complex birth injury trials, and that we've talked about those previously. On these, Ask the Lawyers.

Cynthia Carels: 2:11

And then, in addition to Joe and Shelagh, Weir Bowen's office managing partner, David de Vere, is also on this year's Lexpert Honours list for his work in medical malpractice litigation. So really having all of these shining stars on our roster at Weir Bowen gives our entire team a tremendous base of experience, as well as precedence, to lean into, as we all provide legal advice and guidance to our clients.

Mike Shepherd: 2:33

And on top of that, it really is an honor to share that Weir Bowen has also been included in the inaugural edition of Best Law Firms in Canada, not only at a local level, but also at the national tier.

Cynthia Carels: 2:45

Yeah, and again, this is an honour that is based upon real peer reviews, along with confirmed live client interviews. And I know that in the age of you know artificial intelligence and bot review farming. You know those paid advertorial editions that claim to be awards. It can be really difficult for the public to assess whether law firms are actually telling the truth about their reputations. So when Weir Bowen actually receives these kinds of honours from organizations that do the research to support the awards that they bestow, it really is a major milestone for us, but also a reflection of the quality of the work, dedication and integrity that we believe and clearly our peers also believe that runs through every part of our firm.

Warren Berg: 3:32

Now when I watch TV and things, there's really a lot of legal advertising out there,

Cynthia Carels: 3:36

Oh yeah

Warren Berg: 3:36

And I think for a lot of people it can be difficult for the public to sort through all of the different claims lawyers they make about their firms. So having peer-reviewed recognition really is a great achievement and it seems like people who are seeking legal help would be well served by looking at honours awarded by those in the know directly in the legal industry.

Warren Berg: 3:56

Remind us quickly what practice areas was Weir Bowen recognized for in the best law firms in Canada listing?

Cynthia Carels: 4:02

So we were honoured to be included in several top categories and nationally Weir Bowen was ranked in Tier 1 for personal injury litigation. So that's a big one. You see personal injury ads on TV, billboards, radio all the time, and then also in the Edmonton metro area. We received Tier 1 rankings in three areas. So that included insurance law, medical malpractice and again that personal injury litigation. So it really is a testament to the depth and strength of our team.

Warren Berg: 4:31

So, with all of that, what are we going to be focusing on today's show?

Cynthia Carels: 4:34

Well, whenever we have Mike Shepard on the show, we know we're going to be diving deeply into the world of disability law. It's one of Mike's key areas of practice, with over 10 years of experience, so he brings a lot of insight to the table in this area.

Warren Berg: 4:49

And what exactly do you mean when you use the phrase disability law?

Mike Shepherd: 4:52

Well, in a nutshell, we're talking about claims that arise when an individual becomes disabled and an insurance company refuses to pay out all of the benefits that that person should be entitled to.

Warren Berg: 5:03

But now does that kind of thing happen a lot?

Cynthia Carels: 5:05

Sadly it happens a lot more than it should, and in my personal injury practice I see lots of clients who have been injured due to no fault of their own whether those disabilities have happened as a consequence of a motor vehicle accident or a slip and fall injury or even a medical error and the client's first challenge is simply trying to figure out how they're going to pay their bills when they're unable to work.

Cynthia Carels: 5:28

So in those kinds of situations many people are going to turn to a disability insurance company to pay out some benefits during that period of time when they suddenly can't work. But people can also become disabled for a variety of other reasons, such as disabilities arising from diseases like cancer or multiple sclerosis you name it. And more and more we are seeing people turning to disability insurers for coverage when they need to be off work for things like mental health reasons as well. And even though people may have paid into a disability insurance program for years, they can still face a lot of challenges and even denials when applying to get coverage in those times of need.

Warren Berg: 6:09

It seems to me that might be a bit unfair. When a person is already dealing with a mental or physical disability, facing an insurance company dispute is probably the last thing they need.

Mike Shepherd: 6:19

Exactly, and disability law is something that I'm truly passionate about. I believe it's so important to get this word out, especially for those who might need to navigate disability insurance claims in the future. The knowledge could really make a difference and help those help prevent those that are dealing with heartbreaking denials that can have such a negative impact on someone's life. I'm committed to helping people understand their rights so that they can better protect themselves when they need it most.

Cynthia Carels: 6:47

Yeah, and what's really great about Weir Bowen's team is that Mike is not alone in this area. We have a whole team of experienced lawyers who also handle disability claims, so no matter where you're at in the process, somebody's going to be ready to help guide you through.

Mike Shepherd: 7:01

That's right. Whether it's reviewing your initial claim or handling an appeal, we're here to help. It can be overwhelming, but you don't have to face it alone. Now, I know over the course of some past episodes, we've touched on a number of important topics within disability law, but on today's show we're going to zoom in on what really happens when a disability claim intersects with employment law.

Mike Shepherd: 7:22

Now we'll be talking about employer-sponsored benefit plans, termination accommodation and how your job-specific situation can shape your claim.

Warren Berg: 7:32

And that's really an important angle because I know for a lot of people their disability coverage is tied directly to their job. So, Mike, what are some of the first things somebody should know when their disability claim involves their employer or their workplace?

Mike Shepherd: 7:45

Great, question.

Mike Shepherd: 7:46

When your long-term disability coverage comes through your job, like a group benefits plan, it's not just the insurer's company you're dealing with. Your employment relationship becomes part of the equation too, and that can really complicate things.

Warren Berg: 7:59

It's a helpful distinction. You're not just dealing with the insurer, but also your employer. Can you walk us through what that relationship typically looks like and who's responsible for what?

Cynthia Carels: 8:09

Yeah, so it's generally an employer that sponsors the plan and they're going to be acting as an intermediary in some respects between the disability insurer and then their disabled employee. But that's where people can run into issues quickly and things that they might not expect. For example, maybe you have been privately dealing with a disability while you've just been trying to grin and bear through it at work.

Cynthia Carels: 8:33

You know missing time here and there because of the struggles that you've been dealing with. And then one day, maybe you end up getting terminated due to workplace absenteeism before you've ever had a chance to make a disability claim.

Warren Berg: 8:47

Now that sounds like the worst of all possible outcomes not only losing your job, but also your benefits.

Cynthia Carels: 8:52

Yeah. So this kind of scenario does raise some really important questions. First of all, are you eligible for long-term disability even though you were terminated or fired before you applied for benefits , or perhaps you've been receiving disability benefits and you might feel pressure from your employer or a disability insurer to return to work against your wishes and the opinion of the disability insurer. You know you end up getting terminated from your job or, worse, you lose your disability coverage altogether. So in these cases, you know what should happen here. Do you have a claim and believe it or not? The answer is typically yes, but the overlap between employment law and insurance law can get pretty tricky, which is why it's really important to talk to a lawyer if you're facing one of these kinds of situations.

Warren Berg: 9:38

Now, those are some pretty tough situations. If somebody's been terminated before even applying for long-term disability, or they're being pressured to return to work before they're ready, what should they do first? Is it still possible to file a claim?

Mike Shepherd: 9:50

yes, in many cases it is. We get these types of calls all the time, and often we see people who aren't sure if they should return to work against their wishes or their better judgment, or they aren't sure whether if they should apply for benefits, even though they've already been terminated, before going on leave. We also talk to a lot of people who are unsure whether their termination was even legal, and that's why it's so important to understand your rights, and not only under the insurance policy that applies to your situation, but understanding your rights with employment law as well.

Cynthia Carels: 10:23

And honestly I cannot tell you how many times I've walked down the hall at Weir Bowen to talk with Mike about situations like this involving my injured clients and truly I deeply appreciate having his knowledge of disability and employment law to tap into, because employers and disability insurers can get pretty creative, especially when it looks like somebody's going to be off work for quite a while.

Mike Shepherd: 10:49

Yeah, thank you. And beyond termination, there's also the question of accommodation for employees with disabilities. Employers are legally required to accommodate their employees' disabilities, whether that's modifying duties, their hours or even giving extra time off up to the point of undue hardship. But not every employer gets this right and it can definitely impact how the claim plays out.

Cynthia Carels: 11:08

Yeah, and that's exactly why it's so important to look at the full picture, not just what the insurance company is doing, but also how your employer is handling the situation.

Mike Shepherd: 11:17

Absolutely. We've seen cases where someone is approved for long-term disability but still feels pressure to return to work before they're ready or even gets terminated before, when they're still recovering. That creates a real difficult overlap between health, employment and financial stability, but it shows how much influence and power the employer holds over this disabled employee.

Warren Berg: 11:39

That's very interesting and probably very surprising for a lot of our listeners. So is it possible to have two separate legal claims at once, one against the insurer and then one against the employer?

Cynthia Carels: 11:50

Yeah, actually that happens, and it brings up another major aspect of disability law that we see all the time and many employees don't know about this, which is the possibility of having both a valid lawsuit against the long-term disability insurer for a wrongful denial of benefits and also a valid lawsuit against the employer, which can be for a multitude of reasons.

Mike Shepherd: 12:12

That's right, and these reasons can be for wrongful termination or sometimes, more importantly in the disability denial context, the wrongful administration of the disability plan. As mentioned previously, for most group disability plans, the employer administers the plan and works as an intermediary in many of the initial steps between the employee and the insurer, but they as everyone can can make mistakes and these can end in a denial. For example, they can give bad advice to the employee about when to apply and when to start their leave, or bad advice on what to say on the application or even what evidence is needed on the application. Sometimes these mistakes end in denials of disability benefits in situations where the employee otherwise would have been eligible if the employer had just administered the plan properly and properly advised the employee as to their rights and options.

Cynthia Carels: 13:05

Yeah, and that's what we're going to dive into next what your rights actually look like when you're dealing with an employer-sponsored plan, and also how your job situation can shape your LTD claim.

Warren Berg: 13:16

And this is probably a good time, before we get into all of that, to talk to our listeners about how they can get in touch with you. If they need to talk to a lawyer about disability insurance issues, what is the best way to connect with you?

Mike Shepherd: 13:27

Well, the easiest way is to check out our website and that's at weirebowen. com and that's w-e-i-r-b-o-w-e-n. com. On our contact page there's a form that you can fill in and our contact team, or intake team, will make sure that your inquiry gets to the right people.

Warren Berg: 13:46

And what if the internet isn't an option?

Cynthia Carels: 13:48

So we also frequently take what we call cold calls, where people just call us out of the blue. So you can call our main reception line at 780-424-2030. So that's 780-424-2030. And we have a stable of lawyers that practice in this area and they would all be more than willing to respond to your inquiry.

Warren Berg: 14:08

This is Ask the Lawyer on WindSpeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us today are Michael Shepherd and Cynthia Carels of Weir Bowen LLP in Edmonton. Once again, that's W-E-I-R-B-O-W-E-N E-I-R-B-O-W-E-N. Their phone number is 780-424-2030 or online at Weirbowen. com. And we have been talking about how vulnerable an employee can be to their employer in the time of a disability, and before we move on, let's dig a little bit deeper into how things like termination or pressure to return to work early can affect a claim, especially under an employer-sponsored disability plan.

Mike Shepherd: 14:49

Sure, when your long-term disability coverage is tied to an employer-sponsored plan, your employment status can have a real impact on your benefits. If your employer pressures you to come back before you're ready and you return to work too soon, it can actually put your benefits at risk if the return to work is unsuccessful, because the insurer might take the fact that you are willing to try to return to work as a sign that you're no longer disabled under the terms of the policy.

Cynthia Carels: 15:17

Right, and that pressure can be really difficult for our disabled clients to navigate.

Cynthia Carels: 15:21

In many cases they actually are highly motivated to return to work because most disability benefits only pay a percentage of their regular base pay.

Cynthia Carels: 15:30

So they may be really feeling an economic shortfall when things aren't bringing in as much money as usual. And, honestly, sometimes people can even be going crazy with boredom while they're on a disability leave, even though their doctors have told them they're not clear to return to work yet and they should be staying at home to rest. So there are lots of reasons why a disabled worker is going to be susceptible to an employer pressuring them to get back to work, perhaps sooner than they should. But of course, the big overlapping fear is the fear that an employer is going to figure out how to carry on business without you, and that's really concerning for people you know the employers start shifting around your duties to other people. They might even bring in some new employees and that anxiety that disabled people can have that feels very, very real, as they wonder if there's even going to be a job for them to return to once their treatment team gives them the green light to go back.

Warren Berg: 16:23

Can an employer actually fire somebody when they're on disability leave?

Mike Shepherd: 16:27

We have definitely seen situations where someone has let go while they're still on disability leave. That opens up a whole other set of legal and practical questions, like whether the benefits will keep going or if the termination itself might have been in violation of the disabled employee's rights. It's a very complicated intersection between employment and insurance law.

Warren Berg: 16:47

And that really shows just how messy things can get, especially when your health, your job, your benefits they're all tangled together. If somebody's facing that kind of a situation, how do they even start to figure out what their options are?

Mike Shepherd: 17:00

Exactly, and that's why it's so important to get legal advice if you're facing anything like this. Your employer and your insurer don't always have the same obligations, and understanding where those lines are drawn can make a huge difference in protecting your claim

Warren Berg: 17:14

Now for somebody who's just starting a long-term disability claim under their employer's plan.

Warren Berg: 17:25

what should they be paying close attention to in the early stages, either in the policy

Warren Berg: 17:27

itself or how their employer is handling things?

Mike Shepherd: 17:28

Well, one thing that often gets overlooked is the importance of reading your benefits booklet, not just a short one or two page summary that your employer gives you. The booklet itself should explain how the insurer defines disability, what kind of medical evidence is needed and the time limits for filing your claim. If you're unable to get that booklet from your employer, which does happen sometimes, or even if you are, we still recommend that you reach out directly to your insurance company and ask for a copy of the policy itself so you can confirm exactly what information is needed for filing a claim before you file it. They should be able to get you a policy if you go directly to your insurance company right away, and the full policy will have information that might not be available in that booklet itself.

Warren Berg: 18:13

And that's a really helpful tip, especially since I think most people probably don't realize the full policy might have a lot of extra details in that matter.

Cynthia Carels: 18:21

Oh yeah and that's something we really want to stress Ask both your employer and the insurer about the process. Mistakes by others in this process happen all the time, and making sure that you have all the information needed helps to limit those mistakes that can end up in the denial of your claim, and it's also one of the reasons that we recommend keeping good records of everything. Emails, medical notes, even phone calls with your employer.

Mike Shepherd: 18:46

Yeah, it's also why we tell people, when in doubt, submit a claim, even if you're told that you are not eligible. Why? Because the advice you get, even from well-intentioned people, can very well be wrong. If you believe that you are disabled and were disabled while employed, even if you work through it, then make that application for your disability insurance. It's also why we tell people to talk to a lawyer with specific experience in disability law. At Weir Bowen. Our disability lawyers will provide a free consultation and during that call we can talk you through the process and advise you as to your rights and your options.

Cynthia Carels: 19:24

Exactly, and you know. Things can happen that are out of your control, Like you know. A your employer not providing you with a copy of your booklet or policy, or. B telling you that you are able to work when you really aren't, or. C telling you that you don't have coverage when you actually do. So don't just blindly rely on these representations and accept what people are saying. Talk to somebody who actually knows this area of law and can provide you with independent legal advice.

Mike Shepherd: 19:52

Yeah, and getting back to your question on what to key in on early on, we would recommend that you get your booklet on your policy, talk to your insurance company and your employer and, most importantly, talk to a lawyer. Also, even when in doubt, file the claim and do it quickly. Do not delay. There are strict timelines that need to be followed to avoid unnecessary denials, and while these denials due to delay can be fought successfully in a lawsuit, avoiding that scenario with a quick application is always best.

Warren Berg: 20:23

So if somebody feels like their employer isn't being supportive or is maybe even making the process harder, what should they do? Are there steps they can take to protect their claim or push things forward?

Mike Shepherd: 20:33

Yeah, when someone feels like their employer isn't being supportive, one of the first thing I tell them is document everything. Save your emails, take notes after your phone calls. Just keep that paper trail. It helps show that you're actively doing your part. Take notes after your phone calls. Just keep that paper trail. It helps show that you're actively doing your part.

Cynthia Carels: 20:48

Yeah, that's a great point, and I'd also add if your supervisor at work isn't giving you the forms or other information or documents you need, you might want to try going through your human resources department if at all possible, because sometimes the person that you're used to dealing with at work just really doesn't understand the process of disability law, and an HR department or a representative might be able to get things moving more efficiently.

Warren Berg: 21:10

And that's such a good reminder, because sometimes it's not bad intentions, it's just a lack of knowledge. But if HR still can't help, when should someone think about bringing in a lawyer?

Mike Shepherd: 21:21

Well, if things still aren't improving, don't wait too long to get legal advice. Even just a short five-minute free consultation on the phone can help you figure out your options and make sure that your claim starts on solid footing.

Cynthia Carels: 21:32

Yeah, and on the health side, of course, you definitely want to keep in touch with your doctor. If your employer or insurer questions your ability to work, a current detailed medical note can make a huge difference. You need allies in applications for disability and your doctor is typically one of your best bets, aside from your lawyer, for someone who will do what they can to help you get those benefits that you need.

Mike Shepherd: 21:56

Definitely you can also ask your employer to confirm things in writing as well, like what they expect from you, what they've decided about your leave. Even it holds everyone accountable and reduces confusion that can result in terminations or denials. I see it all the time how a simple request for correspondence to be in writing will by itself just improve your odds against getting bad advice. The request for everything to be in writing in itself sends the message that you mean business, and people on the receiving end of that request will typically double check the information being provided to you, because now, with it all being in writing, there's going to be clear evidence to hold them accountable if they give you bad advice.

Cynthia Carels: 22:36

Yeah, and just remember, you do not have to go through this alone, whether it's legal help, a union or even someone knowledgeable that you trust. Having support in your corner can really help you to feel more in control of the process.

Warren Berg: 22:47

And that's such an important point just having somebody in your corner. That can make it so much easier to ask the right questions, keep things documented and stand your ground when things get tough. This is Ask the Lawyer. On Winspeaker Radio, cfwe and CJWE. I'm your host, warren Berg, and joining us today, Michael Shepherd and Cynthia Carels of Weir Bowen LLP in Edmonton. That's Weir Bowen W-E-I-R B-O-W-E-N. Their phone number is 780-424-2030. You can also visit them online at weirbowen. com. We've talked a lot about how employer-sponsored plans can shape a long-term disability claim, but what happens when things take a turn? Maybe somebody's job is in jeopardy or they're being told to come back before they're ready. What kind of rights or protections does a person have in those situations?

Mike Shepherd: 23:39

Well, let's split that up and I'll answer the easiest part of that question first, which is what do you do if you're being asked to return to work before you're ready? The simple answer to that is just to talk to your doctor and make the decision together. If the two of you believe that a return to work is probably fine, then by all means go down that route. But if you and your physician think that a successful return to work is unlikely and that it's possibly even just too early to start one, then have your physician write a long, detailed letter to your employer and your insurance company as to why a return to work at that time just doesn't make sense for you.

Cynthia Carels: 24:14

Yeah, and I cannot stress this strongly enough Do not make this decision on your own. At the root of this decision is your medical fitness, along with the safety of yourself and potentially others. So if you're at the point where you're being asked to return to work or you're feeling pressure to do so, then refusing to return to work without the backing of your physician will likely lead to a denial of your disability insurance claim or being cut off your disability benefits entirely. And another benefit for talking to your doctor first is that it actually sets up that evidentiary foundation for a future lawsuit for wrongful denial of insurance if the insurance company moves forward with a denial despite both you and your doctor clearly saying, and with reasons why, it's too early for you to return to work.

Warren Berg: 25:03

And that's helpful, especially the importance of having medical support when making a decision about whether or not it's appropriate to return to work. Another part of this situation, however, is what happens when the return to work process doesn't go as planned or as hoped. What kind of support or protections are in place if things start to fall apart?

Mike Shepherd: 25:23

Well, this is another place where disability law intersects with employment law, and things can definitely get complicated. So in this scenario, we'll assume that you've crossed that first hurdle, which is that both of you and your doctor believe that you should attempt to return to work. However, if you aren't yet back to your old self, you may need some accommodations in order to set yourself up for success. In this situation, what needs to happen is that your employer needs to accommodate you up to the point of undue hardship.

Warren Berg: 25:54

So it's not just about whether you're actually cleared to try to return to work. It's also about the support that the employer has to provide.

Cynthia Carels: 26:01

Yeah, exactly. One of the key protections that employees have is this legal duty to be accommodated by their employer in the event of a disability. So this duty requires employers to make reasonable efforts to adjust your work conditions to fit your medical needs. This could include things like modified duties, shorter hours, flex days, part-time or a gradual return to work schedule, or even flexibility with the tasks you're being asked to do. And this duty extends to the point of what the courts call and you've heard Mike use this phrase undue hardship, which basically means your employer needs to go kind of out of its way to make sure this is happening for you.

Mike Shepherd: 26:39

Yeah, and this duty can be misunderstood and overlooked. It should not matter if your employer even has an opening for your return to work or whether there's current capacity at your job to gradually bring you back at a diminished role. If they don't accommodate their disabled employees' needs up to the point of undue hardship, their failure to meet that duty opens them up to a constructive dismissal claim.

Warren Berg: 27:02

And what is a constructive dismissal claim?

Mike Shepherd: 27:05

Well, that's another legal minefield where employment and disability law cross paths far too often. But in a nutshell, constructive dismissal claims arise when the conditions are created by an employer essentially to force an employee to resign. So in the context of a disabled employee trying to return to work, should an employer refuse to provide them with the necessary accommodations, they are basically setting up that employee to fail and this is the kind of action that can be such a barrier to the employee's successful return to work and they end up quitting or doing poorly and that ends up with them getting fired.

Warren Berg: 27:42

Can you give us an example of a situation where this might happen?

Cynthia Carels: 27:44

Oh, yeah for sure.

Cynthia Carels: 27:45

So one of the sectors I see a lot of my clients experiencing struggles in their accommodated return to work phases following a personal or a period of disability is in the field of personal care attendants. You know these are extremely hardworking people and they have some of the most challenging demands on their bodies imaginable, often in less than ideal settings. Many of them are working for agencies. They're getting sent out to provide personal care to other disabled people who need assistance in order to remain in their own homes. So personal care attendants are frequently called upon to assist their clients with things like getting out of bed, transferring to chairs, toileting, showering you know you name it.

Cynthia Carels: 28:26

So when these kinds of workers are trying to come back from a period of disability, say following a motor vehicle accident, there's a huge need for them to get right back into the full physicality of their jobs in service of the agency's clientele. So when their doctor clears them for a gradual return to work with accommodations, you know, frequently that's going to mean limitations on how much they can safely lift or carry or how many hours they can work in a given day, and it might mean the worker needs a second set of hands along with them to help out at certain locations, or perhaps some assistive devices to keep them safe while executing their duties. And all of these accommodations are an inconvenience and definitely an expense to the employer, but without them their employee is not going to be able to safely do their job when they come back.

Warren Berg: 29:16

So then what happens?

Cynthia Carels: 29:17

So I've seen this play out in many different ways, but sadly, since these personal care workers are already frequently underpaid, they simply don't have a lot of margin to stay off work without support. So they are highly motivated to go back to work early with the, you know, grin and bear it attitudes, and rarely does that work out well. And in the worst case scenarios they can not only end up getting re-injured themselves but they could also be exposing their patients to harm. You know, others will see the writing on the wall and some of them will quit with that employer while trying to find somebody else who you know is going to be more open to accommodating their disabilities.

Mike Shepherd: 29:56

We've also seen cases where the employee is just terminated instead of being accommodated for their return to work. Sometimes termination even happens when the employee is still on the disability leave and they haven't requested a return to work, and while this puts the employer at legal jeopardy for wrongful dismissal, it doesn't necessarily mean that the employee's benefits should stop.

Warren Berg: 30:17

Are you saying that a disabled employee who gets let go while still on leave doesn't automatically lose access to their long-term disability benefits?

Mike Shepherd: 30:26

That's right.

Mike Shepherd: 30:27

There's a misunderstanding that once you're let go, you lose access to your long-term disability benefits. That just simply is not true. If your claim was already approved before the termination or you became eligible before your termination say, you became disabled and then you were fired before you could apply like the situation we were discussing earlier, that you were disabled at work but were gritting and bearing it then you still might be eligible to receive your disability benefits.

Warren Berg: 30:53

I think that's something that most people wouldn't expect. Losing your job doesn't automatically mean losing your benefits. I think that's something that most people wouldn't expect. Losing your job doesn't automatically mean losing your benefits.

Mike Shepherd: 30:59

Yeah, and that's why reviewing the policy language and talking to a lawyer is so important. Having someone assess the situation from both an insurance and employment law perspective can make all the difference if you know your rights and they're being overlooked. It is not uncommon for me to open up two files for a disability client wherein we're bringing a wrongful dismissal claim against the employer, while also opening up a file for the wrongful denial of the insurance disability benefit On occasion. Like mentioned earlier, the latter can also have the employer as a defendant as well, so the employer ends up being a defendant on both actions.

Cynthia Carels: 31:36

And just to add to that, you know truly, if something feels off, don't wait. Whether it's being pressured to return to work early or worrying about losing your job in the face of a disability, having someone in your corner can really help you protect not only your claim, but also your health.

Warren Berg: 31:51

Now, if somebody finds themselves in that situation, either being pressured to return early or facing termination, what are some of the first steps they should take to protect both their job and their long-term disability benefits?

Mike Shepherd: 32:05

Well, as we had talked about earlier, the first thing I'd suggest is getting everything in writing. If your employer is asking you to return to work or hinting at a termination, ask for that to be in writing your emails, your letters, everything. It creates a clear record of what's being said and when and by who.

Cynthia Carels: 32:22

And along with that, as before, it's really important to keep your doctor in the loop. If your employer is pressuring you to return but you're not medically ready, your doctor can provide a detailed letter to support your ongoing leave and, as we discussed in prior talks with Mr Shepard on this show, a simple doctor's note. You know, on their little scratch pad of their prescription pad. That's not going to suffice. You want a detailed letter explaining the situation and why you medically cannot return to work. The insurance company is making a decision with truly thousands of dollars on the line and a simple one-sentence note on a prescription pad saying you know, mrs Jane Doe can't work due to medical disability. It's not fair to them.

Warren Berg: 33:01

That's a very good point about keeping your doctor informed. What about when somebody isn't sure what's in their policy, or well, even where to find it? Is it common for people to misunderstand what their long-term disability plan actually covers? Oh yeah, definitely.

Mike Shepherd: 33:17

It's very common. So another important thing is to not only review your LTD policy, but also to get help interpreting it. You know, I've got clients who have been lawyers before and they still don't even understand what's in their policy, which happens all the time. So people often don't realize what they're entitled to and they don't understand that their continued benefits will be there even after termination. So a lawyer can walk you through your rights under both employment law and your insurance coverage.

Cynthia Carels: 33:46

Yeah, and honestly, don't wait until things escalate. If something feels off maybe a conversation with your supervisor didn't sit quite right or you're thinking maybe your job is at risk here it is okay to ask questions. Talk to someone early whether that's a lawyer or a union rep, or even your HR department, if you feel safe doing so.

Mike Shepherd: 34:07

The goal is to protect your claim and your income, but also your health. Stress from these situations can make recovery even harder, and having someone guide you through it it can make a big difference with that. Listen to your gut, for sure, but also get that professional advice.

Warren Berg: 34:23

Now, if somebody returns to work whether because they felt pressured or genuinely thought they were ready then realizes they can't keep up, what does that mean for their long-term disability claim? Are they still able to go back on leave or access their benefits again?

Mike Shepherd: 34:38

Well, that kind of situation happens way more often than people think. If someone tries a return to work and they find that their symptoms are just still too severe, it doesn't necessarily mean that the door to their long-term disability claim is closed. Most policies account for something that's called a recurrence or relapse provision, which allows someone to go back on the claim without starting the whole process over, especially if the return to work was short-lived and the same condition is still involved.

Warren Berg: 35:07

That's reassuring, I think, especially for people who might feel like trying to return might somehow cancel their claim.

Cynthia Carels: 35:13

Yeah, that's a great point, and it's why that medical documentation remains paramount, even during a return to work attempt. If things don't go well, your doctor's notes can help to show that the return attempt was genuine, but ultimately not sustainable or successful, and that can really help when you're trying to get back on benefits without facing skepticism from an insurer. But I do, however, want to carve out a bit of a caveat here, though specific to disability claims arising from motor vehicle accidents. When the disabled person is relying on disability coverage through their automobile insurer instead of an employer group disability policy, so the auto insurers can be real sticklers about a specific clause in the standard automobile policy that only requires them to pay disability benefits, while an individual is what we call wholly and continuously disabled and on many more occasions than I can even count.

Cynthia Carels: 36:10

As soon as someone is given any sort of clearance to try a return to work, even a modified return to work with accommodations, those auto insurers are quick to stop paying and in those situations it can be really difficult, if not impossible, to get them to restart payment of disability benefits, even if the attempted return to work fails.

Mike Shepherd: 36:29

Exactly. And if the return to work attempt was done under pressure say, the employer made it seem like you were going to lose your job if you didn't come back, that's something worth discussing with the lawyer. You may have options under employment law as well.

Cynthia Carels: 36:43

Yeah. So the key here really is communication both with your medical team as well as the insurance provider, and if you feel things aren't going well after returning, do not wait until you have completely burned out. Reach out early and ask for help, as there may be more flexibility in some situations than people might realize.

Warren Berg: 37:01

And that early communication can really set the tone, I think, before things spiral or the claim gets more complicated.

Mike Shepherd: 37:08

As with most aspects of disability law, if you're too disabled to return to work and this is supported by your physicians, then you're quite possibly eligible for coverage, and if the employer or insurer doesn't agree with that call for whatever reason, then seek help from an experienced disability advocate like me or one of the many others at Weir Bowen.

Warren Berg: 37:28

What kind of evidence or documentation might tend to carry the most weight with insurers when somebody's applying or reapplying for long-term disability? Are there common mistakes people should try to avoid during that process?

Mike Shepherd: 37:42

Well, that's a really important question. The most persuasive evidence in any long-term disability claim is often a clear, detailed report from your treating physicians. Insurers want specifics. They want to know what your diagnosis is, how it impacts your ability to work and what your treatment is and whether you're receiving it. As Cynthia had mentioned, a short note saying that you're off work for whatever reason on a small scratch pad just isn't going to be enough.

Cynthia Carels: 38:09

And it's just as important that everything in your applications is consistent what you write in those claim forms and what your doctor says in their report, and even what you say during phone calls with the insurer all of these things need to line up. So conflicting information, even some small details, can give an insurer a reason to delay or deny a claim. And one thing people sometimes don't realize is how much weight insurers place on their own notes from those telephone phone calls.

Mike Shepherd: 38:40

Yeah, that's right, Because they are writing things down on their end right, the importance of keeping things in writing right.

Mike Shepherd: 38:45

So one example would be if you're on the phone and you casually say that you're quote, doing okay over the phone, even if that can be quite misinterpreted and inform part of the insurance company's note on your file. So it's really important to actually describe how you're doing in the context of your condition and your ability to work. Saying that you're doing okay as a person suffering from chronic pain or other disability is most likely much different than someone that doesn't have that disability saying the same thing. It doesn't mean that you're okay and you're not disabled. You're saying that you're okay for someone in your situation right.

Warren Berg: 39:24

It's totally different. There's a difference between saying I'm okay and I'm okay Exactly.

Cynthia Carels: 39:30

Ring, ring, ring. Yeah, how are you doing? Oh, okay, I guess that doesn't really translate through the note writing process. And we have to remember, truly the representatives from the insurance companies have these kinds of calls all the time, whereas for most claimants they don't have anywhere close to the same degree of appreciation for how you know, a simple, polite, offhanded comment like I'm OK might show up in someone's notes or even be used against them. For most people it's really just an offhanded comment that nearly everyone says in polite conversation, but an insurer could try to give that a lot more weight than actually intended.

Warren Berg: 40:07

So I guess the takeaway here is to be honest and accurate in everything that's being communicated to the insurance company, I guess, even if that comes at the expense of some common conventions of casual conversation.

Cynthia Carels: 40:20

Yeah, exactly, well put.

Warren Berg: 40:21

Any other mistakes or pitfalls that people need to think about?

Mike Shepherd: 40:24

Well, another huge one is keeping up with recommended treatment for your disabling condition. Now, if your insurer sees gaps in your care or missed appointments which is quite common they might question whether you're still disabled, even if that treatment isn't helping you that much. Staying engaged with your health care providers and in your health care plan helps show that you're making a good effort to recover.

Cynthia Carels: 40:48

And it is also a common contractual term in a long-term disability policy there's a requirement for being under the regular care of a physician for your disabling condition. So not only will inconsistent treatment be seen as a lack of evidence of disability, since that treatment is required under most contracts, inconsistent or complete lack of treatment can also be deemed as a contractual breach which can disentitle an otherwise truly disabled person from receiving those disability benefits. So there is definitely incentive to seek out and continue treatment while considering a disability claim.

Warren Berg: 41:26

What about situations where somebody can't access the treatment they need, whether it's because of wait times or cost or a lack of specialists? How does that impact their claim?

Mike Shepherd: 41:36

Well, the lack of access to treatment is a common challenge that we see all the time, especially with mental health services in this province or specialists in smaller communities. Even the key thing is just showing that you're making the effort joining a wait list, following through with your family doctor if you're unable to make an appointment with that specialist, or even trying virtual options if those are available to you, and keeping that insurance company in the loop with regards to what you're doing and your efforts in that regard. That kind of documentation helps the insurance company understand that you're not just ignoring your recovery, that you're actually putting in the effort to try to seek the care that you need.

Cynthia Carels: 42:12

Yeah, and the key here is to be able to demonstrate that you are making reasonable efforts to follow through with medical advice regarding your disability.

Warren Berg: 42:20

And what if somebody feels embarrassed or worried about telling the insurer that they can't afford treatment? Does that hurt their case?

Cynthia Carels: 42:26

You know that is actually a really common concern. But it's truly better to be upfront than to suffer in silence. Psychologists, physiotherapists, massages, even prescription medications can be really expensive, especially if the disabled person doesn't have access to employer benefits to offset those expenses. But not being able to afford treatment isn't a failure on the claimant's part. If someone is unable to pay for ongoing physio or counselling, they should tell the insurer that. In fact we've had clients who assumed that they were going to be penalized for not going to treatment, but when they clearly explained their financial barriers it actually helped their case.

Mike Shepherd: 43:04

And even showing that you've explored lower cost options like community programs, online options or public health supports can go a long way as well. It demonstrates that you're engaged in the process and doing what you can to support that recovery.

Cynthia Carels: 43:18

And insurers are not expecting people to jump through impossible hoops. They just want to see that you're making a genuine effort. So keeping good records of your efforts, those calls made, the appointments scheduled, even cancellations. It's a good idea to keep track of the reasons why those cancellations happened, and that can really strengthen a claim.

Warren Berg: 43:37

And that makes a lot of sense. What about communication with the insurer itself? Are there things people should or shouldn't say when they're giving updates or answering questions during the claims process?

Mike Shepherd: 43:49

One thing I always tell clients is be mindful of how you describe your condition when you're talking to your insurance company. Like we talked about earlier, even casual phrases like I'm managing or I'm doing okay can be misinterpreted as meaning that you're fully recovered, even though that can be far from the truth.

Cynthia Carels: 44:05

Yeah, and it's totally understandable. People don't want to sound like they're chronic complainers. They've probably had to say this a million times to their friends and family as well, but we just need to keep in mind insurers are carefully listening closely to every word, and it is better to be honest and specific about your limitations when you're talking to them, even if it does feel uncomfortable.

Mike Shepherd: 44:25

Exactly and give details. If fatigue means that you're only able to be active for a couple hours a day, say that. Don't just leave it at fatigue. Let them know what your limitations are, and that kind of detail gives context to what you're telling them and helps support the medical evidence.

Cynthia Carels: 44:41

Yeah, and I'd add, take the time to review everything before you submit or send it in, whether it's a claim form or even just a progress update. Make sure that it aligns with what your doctor is reporting as well, because, like we said earlier, those mixed messages can create problems down the line.

Mike Shepherd: 44:57

And that's where keeping a written record of your communication with the insurer really helps. If something gets misunderstood or questioned later, you have something to go back on.

Warren Berg: 45:06

So let's say that somebody listening today thinks they've done everything right. They've applied in a timely fashion, They've got supporting medical information from their doctors and they're trying to follow through with all of the treatment. But their insurer either refuses to pay or cut somebody off of their benefits too soon. What can people expect when they call a lawyer?

Cynthia Carels: 45:26

Well, before talking about what to expect, let's maybe talk about what not to expect, because I know people have a lot of misconceptions about picking up the phone to talk to a lawyer in the first place. So, first of all, when you call Weir Bowen for a consultation, you do not need to worry whether our lawyers are going to be sending you a bill for that phone call. We do not have clocks ticking in the background when someone calls in with an inquiry about their potential case. Every long-term disability consultation we offer is a simple phone call and it is completely free. So during that call, we're going to gather some preliminary information from you about things like you know A the nature of your disability. B some timelines involved regarding when your condition started and when it eventually rendered you unable to work. C. We're obviously going to want to know about what you actually do for work and the way that your disability impairs your ability to work. And, of course, finally, what the insurance company's position is regarding your entitlement to coverage and if they have explained their position to you.

Mike Shepherd: 46:28

Exactly, and if you've already received, and been provided by your insurance company, a copy of the letter explaining the denial, then commonly we're going to be asking to see a copy of that letter as well and we'll review that for you. And if there's an employment angle to the claim, we'll also be asking you a few questions about that as well. This information, along with the information just mentioned by Cynthia, is going to help guide our recommendation to either hire us to open up a file and pursue a lawsuit, or we could simply just provide the caller with some other form of free, problem-solving advice to help them navigate their situation. Not every call ends in a lawsuit or our retention, but every call does end with us providing helpful, free advice.

Cynthia Carels: 47:11

Yeah, and when the consult does conclude with a decision to hire our services and to pursue a lawsuit. I should add that our retention is almost always on a contingency fee matter for disability files. Many of our clients who are either on disability or have been recently denied disability coverage just don't have piles of cash lying around to pay for a lawyer or a lawsuit. So with our form of contingency fee agreement, most of our clients are not asked to provide an upfront retainer and then we are only going to get paid if our client gets paid.

Warren Berg: 47:42

And do you do hourly work for disability clients as well?

Cynthia Carels: 47:45

Yeah, we do. It's not nearly as common as our contingency work in this area, but if the client would prefer it, then yes, we can definitely do an hourly retainer, For example. Some clients like some large unions who Mike has some experience working for in the past, will on occasion hire an experienced disability lawyer by the hour to prosecute a lawsuit on behalf of their unionized worker, since unions don't have the same financial concerns as a disabled worker.

Warren Berg: 48:14

We have spoken a lot in this series with Weir Bowen about lawsuits and we've dispelled a lot of myths about the assumed intimidating nature of a lawsuit and I think that's been very helpful for our listeners. What can you tell us about how a disability lawsuit works to help demystify that experience for our listeners, of course?

Mike Shepherd: 48:30

So let's start from the beginning. If you've been denied coverage for long-term disability insurance and you've spoken to one of our lawyers and we've advised you that you have a strong claim, then the next step is typically a recommendation to hire us to open a file and immediately start with the prosecution of the lawsuit. Now, we typically don't recommend our clients pursue internal appeals with the insurance company or send demand letters. Those are typical steps with most other types of litigation. Instead, our recommendation is typically just to start immediately with the lawsuit. The reasons for this is plenty, but primarily internal appeals or demand letters can take weeks to months of precious time when you're not receiving any income and in our experience, they do not often result in the insurance company changing their mind. And the sooner we can get our clients a positive outcome, the better.

Cynthia Carels: 49:22

Yeah, and adding to that, this fast and rather aggressive approach of filing a lawsuit quickly also helps with getting the file out of the hands of the claims manager at the insurance company, who's the one who made the decision to deny your claims in the first place, and it's going to get your file into the hands of somebody new. So this is going to give the file a fresh set of eyes, while also sending the message that you are willing to go the distance by retaining an experienced disability advocate. And while many other types of lawsuits can take, you know, five to eight years to complete to fruition, this is not our experience at all with our approach to these disability claim matters.

Cynthia Carels: 50:00

We prosecute these files quickly and aggressively, with many of our files concluding within a year of the file opening, and this approach is an acknowledgement that our clients are typically not financially able to sit for months and months off disability without any money coming in. They need help and they need it quickly.

Mike Shepherd: 50:16

That's exactly right and, from another angle, instead of being overwhelmed with a lawsuit, I can also add that my clients have advised me many times that how much peace of mind they're able to regain after hiring a lawyer like myself and being able to offload the burden of the insurance denial and their lack of income on their lawyer.

Mike Shepherd: 50:36

This helps them focus on their recovery, their care and their other pursuits, leaving the burden of the denial with me. Dealing with a denial on your own can be overwhelming and intimidating, but initiating a long-term disability lawsuit should not take up lots of your time or command much of your schedule. After the file has been opened and you've authorized us to act on your behalf, it will be us who will correspond with your care providers to access your records. It'll be us who will correspond with the experts to get the supporting medical opinions that we need to bootstrap your case, and it's going to be us who's going to be writing to the insurance company and putting them on notice. While we are going to need to check in with you periodically for updates on your care and your medical status and to provide you with updates on our progress with the insurance company, this is not going to be an overwhelming process.

Warren Berg: 51:26

And is that the next step in the lawsuit? You obtain the relevant medical records and expert opinions?

Cynthia Carels: 51:32

Yeah, for sure. As soon as the file is opened and those retention documents are signed, we're going to start right away with building the foundations of the case and truly the stronger the foundation, the better the outcome. And as is the case with other areas that we practice in, like those motor vehicle accidents or medical malpractice, the foundation to any good disability claim is the medical record, those opinions of your treating physicians and, when needed, sometimes even independent experts.

Mike Shepherd: 51:58

And this is just another reason why we advise to continually seek out the care for your condition. And, as we've talked about before, many of the reasons for denial of disability insurance is based on misunderstandings or the incorrect interpretation of incomplete information and therefore, by getting yourself in a position where you have a complete and full medical record and we can bootstrap that with an expert opinion that really helps clear out these misunderstandings and provide evidence as to the correct interpretation of what your medical situation is,

Warren Berg: 52:29

so what is the goal of the lawsuit, or maybe, in other words, what is the typical outcome that you're going after?

Cynthia Carels: 52:34

Yeah, that's the question probably everybody's asking today, and in cases where the only defendant is an insurance company, then the type of outcome that you can go after is going to depend on when you are concluding the lawsuit. So, for example, if a matter goes to trial, then you are looking for a reversal of the denial of insurance as well as a declaration that the plaintiff actually was disabled under the terms of that contract. So successive trial is going to then result in payment of those missed benefits, amongst maybe some other contractual damages like mental distress or aggravated damages. However, if you're settling a long-term disability action before trial, then the forms of settlement could either be a reversal of the denial with payment of your arrears benefits or, in some cases, even a lump sum payout.

Warren Berg: 53:23

Do these big insurance companies overturn their denial decisions, reinstate on the policy and settle these claims?

Mike Shepherd: 53:29

They

Mike Shepherd: 53:30

do, Definitely. Trial is not very common at all in these types of cases and, like we had mentioned earlier, many of the cases take less than a year from when we are hired to when we're able to settle or conclude the action, and the commonly held assumption that the decisions of these insurance companies must be right, or that you can't fight the insurance company's decisions, or that the insurance company will not reconsider their erroneous decisions, is just wrong decisions or that the insurance company will not reconsider their erroneous decisions is just wrong. If you feel as though, that you should not be working due to a disability and your physicians are supporting you in that decision, then there's a really good chance, like I've said before, that you have a good claim, and at Weir Bowen we have over 40 years of experience in fighting these types of claims against insurance companies and we're getting good results for our clients.

Warren Berg: 54:14

That's some great advice and thank you both today in fighting these types of claims against insurance companies and we're getting good results for our clients

Warren Berg: 54:21

Cynthia Carels and Michael Shepherd of Weir Bowen LLP for joining us for another episode.

Cynthia Carels: 54:23

As always, it is our sincere pleasure.

Warren Berg: 54:25

You are most welcome for coming down here, again and we look forward to learning much more through this series, which takes place here on CFWE and CJWE on the last Saturday of every month. Once again, if you need more information, you can visit their website weirbowen. com, that's W-E-I-R-B-O-W-E-Ncom. Their phone number is 780-424-2030. You can also find a link to Ask the Lawyer on the radio station homepages, where these shows will be available on demand by streaming.

Warren Berg: 54:56

Thanks, very much,

Cynthia Carels: 54:57

thank you.