Do headaches and migraines qualify as a disability in Canada?
Some migraines or headache conditions are severe enough to qualify as a disability in Canada. So, in short, yes. However, proving this without a doubt to your insurance provider can be challenging. Since some adults who suffer from chronic headaches or migraines can continue working, insurance companies will use this reasoning as leverage to deny your claim. They will say if they can do it, why can’t you? So, although you know your condition is entirely disabling, you still must undertake to prove it without a doubt.
Employment and disability rights for heartaches and migraines
In Canada, any person who has a disability has the right to a discrimination-free workplace. Likewise, the employer must make accommodations for their employee. Employers can indeed fire anyone if there is proper notice and reasoning. However, they cannot fire anyone for a discriminatory reason regarding their disability.
Taking a leave of absence can be scary, and no one wants their job jeopardized for reasons beyond their control, like their migraines or headaches. Managing the pain, symptoms, and flare-ups of a migraine or headache condition can be complicated. Some migraines or headaches become debilitating enough that working full-time isn’t possible.
If your chronic headaches or migraines have progressed and become too severe for you to continue working, then a leave of absence is not an unreasonable 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.
If you apply for long term disability benefits and your claim is denied, you can remain on sick leave while you appeal. Most employers will not object to this if you’re still providing doctor’s notes regularly. You have legal rights if your employer tries to fire you while on sick leave or applying for long term benefits due to your headaches or migraines. If you are terminated as a direct result of your disability, you have the right to severance pay and may be able to have your employment reinstated. These situations are tricky and challenging to navigate. Having a lawyer with experience in these types of claims can help speed along the process. You deserve expert legal advice and someone on your side to help get you the benefits you deserve.
Types of disability rights for headaches and migraines
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 headaches and migraines
Since headache and migraine disorders are often under-reported and under-treated, it’s not easy to prove that your condition is disabling enough to prevent you from working. Since many people who suffer from similar conditions can continue working, it’s up to you to prove that you’re unable to do so and provide evidence as to why.
The first step is to obtain a complete medical diagnosis of your condition. This is more than just your doctor saying so; insurance companies like to see CT scans and MRIs supporting your claim. Unfortunately, these tests don’t often fully display the scope of the condition and cannot express the intense pain the disease comes with. Therefore, it is essential to work closely with your doctor and that your medical record contains all results of tests done and any prescription medications used to alleviate symptoms. Keeping a journal of symptoms will provide excellent evidence supporting your claim.
The insurance company will want to see that your migraines or headaches are debilitating enough to prevent you from working. They will want to know the answers to questions like how frequent they are, the severity, and how many times you’ve had to go to the doctor or hospital due to your headache condition. By maintaining a journal of missed time at work, you create a wealth of evidence supporting your claim. Flareups, or instances where a migraine was triggered as a direct result of your duties at work, should be recorded with dates and times. Sometimes we forget exact details over time, so having a detailed and up-to-date log of your migraines or headaches will help us win your disability benefits claim.
Even with your records, and your medical file, your insurance company will still want to see that you’ve made every attempt to stay employed. After exhausting every other option, they want to see that claiming long-term disability benefits is a final resort. If staring at a computer screen all day is a trigger, they’ll want to see you attempt lighter roles with less screen time. To win your disability benefits claim, you must prove that you’ve tried everything, with no luck in resolving the issue.
How to hurt your long term disability claim for headaches and migraines
- Presenting an incomplete medical file lacking test results or an official diagnosis
- Being unable to prove that you’ve explored other options to stay employed
- Having a negative attitude towards those working on your claim
- Unnecessary blocking or stalling of reasonable requests regarding your claim
- Inconsistent or contradicting statements regarding your claim
How to improve your long term disability claim for headaches and migraines
- Having a file with plenty of medical evidence proving the debilitating nature of your headaches or migraines
- Being cooperative with those working on your claim
- Demonstrating effort towards maintaining regular employment, despite your condition
- Maintaining a record of symptoms, flareups, triggers, and missed time at work due to your migraine or headaches
Common reasons for denial of benefits for headaches and migraines?
Long term disability benefits claims are most often denied due to a lack of evidence. Insurance companies seek out any gap or hole within a claim and exploit that as a reason worthy of denial. Often this can mean a lack of a single medical test or insufficient proof demonstrating your efforts to stay employed.
The deciding factor in approving or denying a claim is whether the condition is debilitating enough to keep you from working. If your medical file doesn’t show that you’ve tried every treatment or prescription available to manage your headaches and their symptoms, this will be enough to deny your claim. Insurance companies want to see that you’re using the long term disability benefits are an absolute last resort.
Furthermore, these companies want to see that you’ve done your part in trying to stay employed. They want to see you try switching roles, working fewer hours, and trying to avoid anything that triggers your headaches or migraines. If you’ve listed screen time as a trigger but haven’t tried working in a different position that doesn’t involve as much computer work, then the insurance company will use this to deny your claim.
The best way to avoid this is to provide a claim without any weak points that an insurance company will use against you. You can still appeal if your claim is denied, but this can be a long process. Having a lawyer to help you present a complete and well-rounded claim with no weak points is the fastest way to streamline claiming long-term disability benefits.
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.
