Back Problems and Conditions
What is considered a back problem or condition?
Back pain is a term that describes any pain resulting from an injury, activity, or medical condition that affects the lower or upper back, along with the spine. Some forms of back pain happen over a long period from repeated lifting or strain on the spine and surrounding muscles. Repeated or awkward motions increase pressure on the back, which raises the risk of developing back pain. As people age, the risk of back pain grows.
Since there are so many different things that can be considered a back problem or condition, here are some you should be thinking about when considering a long term disability claim. Conditions include sciatica, spinal fractures, osteoporosis, slipped or bulging discs, degenerative disc disease, muscle injuries, arthritis, and more. Any one of these numerous back problems and conditions may make you entitled to long term disability benefits. If you are unsure, don’t hesitate to reach out for a free consultation with our expert intake specialists.
Do back pain and spinal conditions qualify as a disability in Canada?
In Canada, back pain is recognized as a medical condition that qualifies you for long term disability benefits. Sometimes back pain might be directly linked to your duties at work, coming from daily heavy lifting or other tasks. You must present undeniable medical evidence supporting your case to have your claim recognized.
While a proper medical diagnosis is necessary, it is not enough to win your long term disability benefits claim. Victory requires that you win your disability benefits; you must be able to prove that you cannot work due to the pain. Most insurance companies will focus on the severity of symptoms, how your work is affected, what kind of treatment you have received, and your effort to stay at work. A solid paper trail documenting your doctor’s visits to your doctor, medications, and other relevant medical evidence will be vital in proving you cannot work at your total capacity.
Employment and disability rights for back pain & conditions
Taking sick leave is stressful for every working person; no one wants to be let go for health reasons out of their control. Employers may indeed fire anyone with proper notice and reasoning. However, they cannot fire you for a discriminatory reason regarding your back pain or a spinal condition.
Canada’s human rights laws dictate that employers must assist their employees with a medical condition regarding their back pain that affects their work. So, naturally, sick leave is a reasonable request that employers must accommodate. A doctor's note is required to be granted a leave of absence. The contents of this letter should indicate that you’ll need time off and the length of time needed. When it comes to more prolonged bouts of absence, these notes must be provided consistently. Every three to six months is a general standard for proving you’re still unable to return to work.
If your application for long term disability benefits is denied, you can remain on sick leave while you appeal. Most employers will not object to this if you’re still providing doctors’ notes regularly.
You have legal rights if your employer tries to fire you while you’re away on sick leave due to your back condition. You have the right to severance pay, and you also may be able to have your termination reversed if their reasoning involves your back or a spinal condition. These situations can become challenging, so having a lawyer to help you navigate these strenuous situations can be an immense relief.
Types of disability rights for back pain & conditions
Not all disability insurance plans are the same. Here are the typical benefits included in Canadian disability insurance plans:
Paid Sick Leave
Some workers will have a bank of sick time to use in the first days of disability. The intent of this benefit is to allow the worker to have a few days to get back to work. Some workers may have many weeks or even months of accrued time to use.
If you do not believe that you will be able to return to work before your paid sick leave is exhausted, be sure to complete an application for disability insurance benefits right away. You do not need to wait until you have used all your paid sick leave before submitting your application. Also, it is always easier to work on a disability application while you are being paid so don’t wait until your benefits have run out.
Another major reason not to wait to apply for STD Benefits is because of deadlines that may apply. You may miss the deadline to apply for benefits because you are being paid sick leave benefits.
Employment Insurance Sickness Benefits
Your alternative to paid sick leave is government provided employment insurance (EI) benefits. Most workers have fewer than 15 weeks of paid sick leave so EI benefits will make up the difference between the expiry of paid sick leave and a STD Benefit. EI Benefits must be applied for through the government. In order to apply, you must obtain a medical report from your doctor and a Record of Employment (ROE) from your employer.
Go to www.servicecanada.gc.ca for information on the EI sickness benefit and to download the application forms. Service Canada will not process your application until both the medical form and the ROE has been submitted, so be sure to book a doctor’s appointment and request your ROE right away.
Short-Term Disability Benefits
The first of two main benefits in most disability benefit plans are STD Benefits. The purpose of STD Benefits is to provide you with income while you are unable to work due to illness or disability. The Benefit is designed to cover short absences and not intended to be a long-term solution.
STD Benefits provide a weekly or bi-weekly payment for a number of months. The short pay periods are designed to provide you with uninterrupted income while you are absent from the workplace. Most often, you will be required to use accrued paid sick time before accessing your STD Benefits. While cashing in sick time may be frustrating for some, it is wise to accept this condition because the sick time should provide you with more income than the STD Benefit.
The STD payment typically provides for a percentage of your regular weekly earnings or a specific amount of money. The benefit payment calculation details are specific to the policy and set out in the insurance policy document.
Payment examples include:
• The worker will be paid 60% of his or her pre- disability weekly earnings, or
• The worker will be paid $500 per week, or
• The worker will be paid their pre-disability weekly earning, up to a maximum of $500 per week.
Most STD Benefits last between three and six months. If the group plan does not have a LTD Benefit, the worker will have no further benefits under the group policy.
Long-Term Disability Benefits
LTD Benefits are the second major element of most group disability plans. There are some plans, however, that only include LTD Benefits. If your plan has both STD and LTD Benefits, a disabled worker will ‘roll over’ to the LTD Benefit at the expiry of the STD period if they are eligible to do so.
Eligibility for LTD Benefits is not always a given. Workers often earn their eligibility to the Benefits through working continuously for the employer for a number of months.
Eligible workers will be able to make a claim for LTD Benefits if they have been out of work continuously for a specific period of time. This period of time is typically the length of the STD Benefit. This period of time set out in the policy wording is referred to as a “waiting period” or “elimination period”. LTD Benefits will not be paid prior to the elimination period; however, benefits will be paid for the total period of continuous disability if the claim is approved.
Benefit payments under a LTD Benefit are assessed based on a percentage of your pre-disability income. Typically, the benefit will be between 55% and 75% of your regular earnings, or a set amount of money per month. Other polices will have a net formula.
Payment examples include:
• The worker will be paid 66.7% of their monthly pre-disability earnings, or
• The worker will be paid $3,000 per month, or
• The worker will be paid 66.7% of his or her monthly pre-disability earning up to a maximum of $3,000 per month.
The exact payment formula will be set out in the policy document. Be sure to refer to your policy to confirm what the applicable payment formula is for your claim.
The LTD Benefit will make payments on a monthly basis for a set number of years (e.g. 5, 10, 20), or until you reach a certain age (e.g. 60, 65, 67). Some plans may have a benefit termination formula where a mixture of the years a claimant received benefits and the claimant’s age is used to calculate an end date. Generally speaking, the latest date where a claimant will be eligible for Benefit payments is called the Maximum Benefit date.
How to win disability benefits for back pain & conditions
To win disability benefits for your back pain, you must prove that it is a disabling medical condition that has affected your ability to maintain regular employment. Disability claims often get rejected due to a lack of reasonable evidence, and insurance companies will seek any gaps in the medical documentation submitted within your claim.
Making an appointment with your doctor is an essential piece of your claim and is the first part of proving the extent of your disability. Being honest with your doctor allows them to get all the information they need to determine which diagnostic tests you will receive. Factors such as which tasks you struggle with, the extent of your pain, and what triggers your condition can help identify which types of scans to run to show the full scope of your situation. Imaging is an important diagnostic tool.
Depending on your back pain or condition, each test can highlight a different within your spine or surrounding muscles. For example, an MRI will show the discs and nerves in your spine, whereas an X-ray produces images of the bones. Determining which of these two forms of imaging you require is essential to a proper diagnosis. Therefore, giving your doctor all relevant information can produce test results that will aid in receiving the correct type of test and boosting the credibility of your long term disability claim.
Keeping a written record of pain, tasks you could not complete, or other relevant information will allow you to properly demonstrate the consequences of your back pain on your activities of daily living. By having a journal with dates and descriptions, you can present a timeline of your condition and how it affects you. Things to note include times when you could not sit or stand for an extended period, chores you were unable to complete, that took longer to complete, or that caused you significant pain. Documentation is vital in presenting a factual claim. Medical records are essential, but so is your input.
How to hurt your long term disability claim for back pain
- Placing blame on others or offering weak excuses
- Filing negative complaints towards the professionals working with you or working on your claim
- Acting as though you are a medical expert
- Being aggressive towards others working on your claim
- Medical records or personal statements that contradict your claim
- Fighting with the doctors who have run your tests
- Blocking or fighting over reasonable requests for information
How to improve your long term disability claim for back pain
- Having statements which match what is in your medical file
- Seek out a range of different treatments for your back to show a consistent and apparent effort to continue healing as much as possible
- Being polite, respectful, and cooperative towards all parties involved with your claim
- Willingness to accept and follow through with recommendations, even if you disagree with them
- Not placing blame or playing the victim
- Accepting medical or legal advice from professionals
- Present a full record of medical treatments
- Taking responsibility for any problems within your claim
Common reasons for denial of back pain claims
Disability claims involving back pain or conditions are often denied due to a lack of evidence, insufficient effort towards healing, and receiving incorrect treatments.
If your claim is denied due to a lack of evidence, you are within your rights to appeal. Unlike other conditions or diseases, there is no foolproof medical method to identify disability caused by chronic pain. Doctors do their best to provide best practice, and often that is more than enough evidence to have your claim approved.
When appealing your denial due to a lack of evidence, highlight how you received all the recommended tests and treatments and followed your treatment plans. Also, mention what you have done to try and stay at work.
If you are denied due to insufficient effort, it generally is your insurance provider claiming you could do a different role at your workplace. For example, if you used to load heavy merchandise onto a truck and now cannot lift to your old capacity, they’ll recommend you try a desk role to maintain employment. Often, the only way to overrule this decision is by trying the lighter positions. Your insurance provider and employer will always use this to their advantage until you’ve proven you’re willing to try and be accommodating.
When it comes to incorrect treatment, your insurance provider will claim that you would be' cured' if you’d received the appropriate medical treatment. Some insurance companies will even suggest that you actively refuse the right treatments to claim disability.
To prove that you haven’t been misdiagnosed or mistreated, be fully honest with your doctor to receive all necessary testing for your diagnosis. Having a solid medical file is an excellent way to defend against this argument.
What if your claim is denied?
Know that you are part of a large group of Canadians who have had their benefits denied by the insurer at some point during the course of a claim. Those who have been issued a denial letter are those who had their application rejected by the insurer. They were deemed eligible to apply for benefits, but not totally disabled and therefore were not approved for benefits. Those who have been issued a termination letter are those who were approved for benefits but were then found not totally disabled. The insurance company generally chooses to terminate benefits at or before the two-year mark from the date of disability.
For those who have been denied, some will be legit mate because the applicant is not in fact disabled. Other applicants are truly disabled but were simply denied by the adjuster because their application was not strong enough to warrant approval. Of course, the insurer would prefer that denied applicants forgo the appeal process and not sue for benefits.
For those who were approved and then cut off sometime afterwards, the insurer is attempting to ensure that the denial is accepted by the insured during the “own occupation” period. This is ideal for the insurer as it may prevent appeals or legal claims. Thus, it allows the adjuster to close the file well before the Change of Definition date occurs.
You cannot change the fact that the insurance company denied your claim. However, you do have complete control over what you do in response to the denial or termination of benefits.
The options available to the applicant will depend on what is permitted by their policy or plan. In most cases, the applicant can advance their claim to an internal appeal mechanism or commence a lawsuit. If a plan is through a non-profit disability benefit trust fund, it is likely that only an internal appeal mechanism will be available to them. For these workers, they have been denied the right to have a neutral court decide whether or not they are entitled to benefits.
WHAT IS THE DIFFERENCE BETWEEN A DENIAL LETTER AND A TERMINATION LETTER?
It is a bad day for any disabled worker when they receive a denial letter or termination letter. The letter is essentially a rejection of financial support in a time of need and it leaves most people very worried about their financial future. After receiving a letter, some disabled people experience severe declines in their mental or physical health because it feels like their expected safety net has been ripped out from beneath their feet.
What the disabled person does after receiving a denial letter or termination letter is critical. First, be sure that you keep a copy of the letter. Photocopy and safely store a copy of the letter before making any marks on the letter. Any competent disability lawyer will want to see a clean copy of the letter to review at an initial meeting.
The denial letter is also important as it offers a window into the insurance company’s decision-making process on your file. The letter should (but does not always) spell out what information was reviewed and what findings were made with respect to the information in your file. The insurer should explain why your application was denied, or why you are no longer entitled to benefits. For new claims, the denial will typically mention that while your injuries cause you to suffer some restriction, you do not meet the test for total disability. For cases where a benefit termination letter is sent, the insurer will often mention that activities (often from surveillance evidence or information from phone calls) are inconsistent with reported restrictions and limitations. The explanation provided in other circumstances will parrot select wording from the medical expert chosen by the disability insurer. Once you have sorted out why you were denied, you can then determine what you can do to attempt to overturn the unfavourable decision.
Warning! There is a lot of misinformation about insurance policies and the rights that come with them. Do not rely on the word of a union representative, co-worker, or supervisor to explain your rights and ideal strategy when facing an insurance benefits claim. This is especially so where there is no right to sue. While they may have the best intentions, they may not have the best advice. Contact an experienced disability lawyer to avoid a major claims mistake.