Chronic Pain

What is chronic pain?

Pain comes from an alarm sent from your nervous system to your brain. The brain receives the signal and, in turn, sends your body the message that you are hurt. When the pain resolves, the alarm turns off. Chronic pain happens when that alarm doesn’t turn off.

Chronic pain is classified as lasting for an extended period, sometimes many years or even indefinitely. Chronic pain presents in numerous ways, ranging from sore joints and muscle aches to headaches or other internal pain.

Chronic pain can be a standalone disease or come from other severe conditions like Crohn’s disease, arthritis, irritable bowel syndrome, etc. It can also come from injuries related to trauma or neurological disorders. There are numerous sources of chronic pain, and those who suffer from this debilitating condition also experience weakened immune systems and a heightened risk of tumors. 

Does chronic pain qualify as a disability in Canada?

Due to the severe nature of this condition, it is considered a disability in Canada and worthy of an insurance claim. Whether your chronic pain stems from another illness or accident-related trauma, you are tasked with proving that it is intense enough to prevent you from completing your duties at work. Since this condition presents itself in various ways and stems from many different reasons, it can be challenging to obtain an official diagnosis.

Along with physical symptoms, sufferers of chronic pain often experience mental symptoms. Feelings of depression, hopelessness, despair, and even bouts of insomnia are common. Experiencing constant pain takes a psychological toll, and those experiencing chronic pain also must take care of their mental health. This can also be a significant reason for needing a short or long term leave of absence and should be included in your reasoning when making your disability claim.

 

Employment and disability rights for chronic pain

In Canada, any person who has a disability has the right to a discrimination-free workplace. The employer also has a duty to accommodate their employee. If chronic pain becomes too severe for an individual to continue working, then leave of absence is a reasonable request. Most employers will not object to this if the employee provides a doctor’s note.

The note should state the need for time off and the amount of time required. If this is a prolonged absence, the employer may request that a doctor’s note be resubmitted every three to six months. During this time, the individual has a right to submit their claim for long term disability benefits. If the claim is denied, the employee may stay on a leave of absence and appeal.

Termination due to a disability or medical condition counts as discrimination. In this case, the individual is entitled to severance pay. The decision may be reversed in some cases, and the employee can return to work if they wish.

Types of disability rights for chronic pain

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 chronic pain

Those seeking benefits regarding their chronic pain must have patience. Chronic pain is often misdiagnosed, dismissed, and misunderstood. However, it is still possible to win your claim! Being fully transparent regarding your claim boosts your overall credibility, and credibility is essential to winning your claim. Chronic pain can’t be easily measured or assessed with one single test. Scrutiny regarding your condition is expected, and you undermine your credibility by participating in activities that make your claim seem unbelievable. If you’re filing a disability claim but are still playing full-contact sports, this creates doubt surrounding your condition.

To be granted disability benefits, you must prove that you have received the proper medical testing demonstrating the root of your pain. Say your chronic pain results from a traumatic injury, then an x-ray of the afflicted area should show the damage. However, diagnosing and proving your chronic pain is not always that straightforward due to the unclear nature of this invisible illness.

To begin receiving disability benefits, those making a claim must prove that they have sought medical attention and explored all available treatments. Examples would be receiving injections, attending pain clinics, going to physio or massage therapy, and taking correct medications. A disability case is more likely to be considered when the employee has shown effort to continue working. Thus, seeking a doctor is essential in receiving disability benefits for chronic pain within Canada.

Exaggerating the truth surrounding your claim or inconsistencies in your story could also make insurance providers doubt the severity of your claim. Being fully honest regarding your condition creates the credibility you need to be granted disability benefits. A journal describing your good days, your bad days, tasks you struggle with at work or home, and any other symptoms is strongly recommended. It would be best to record your attempts to modify tasks within your job to prove your efforts to remain employed. Building good faith with an insurance company is essential in winning your claim. 

How to hurt your long term disability claim for chronic pain
  • Contradicting stories or testimonies regarding your claim
  • Hiding medical tests that don’t work in your favor
  • Aggressive or confrontational attitude towards those working on your claim
  • Missing tests or appointments to do with your condition
  • A noticeable lack of effort towards maintaining your employment
How to hurt your long term disability claim for chronic pain
  • A complete and well-rounded file of medications, treatments, doctor’s visits, and therapies
  • A self-made journal detailing your pain and management techniques
  • Friendly, polite, and honest approach to dealing with insurance providers
  • Proof of attempts made to modify duties and maintain employment
  • A good attitude when answering questions or providing documents 

Common reasons for denial of chronic pain disability claims

Chronic pain claims are often denied due to a lack of effort or evidence. Insurance companies will seek out any hole or weakness in your claim and use that to deny you the benefits you are entitled to by law. Even a missed prescription refill can create reasonable doubt about the severity of your chronic pain. 

Presenting a complete medical file is key to backing up your claim. Proving that you have followed doctors’ recommendations and tried things like physio or massage therapy is vital in establishing you are serious about trying to improve your health. Suppose you suffer from the mental side effects of chronic pain, like depression. In that case, showing the insurance company that you’re actively in therapy strengthens your claim. This process can feel personal, but it is critical in winning your claim. 

Your claim may also be denied because you haven’t attempted to modify your duties at work. Suppose you can’t prove that you have made a genuine attempt at maintaining your employment by exploring other roles or tasks. In that case, the insurance company will deny your claim. It is essential to do your due diligence and provide evidence that you have done your best to stay at work to prevent this. 

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.