The 2012 Canadian Survey on Disability found that one in seven Canadians 15 years or older live with a disability that limits their daily activities. Of Canadians aged 25 to 64 with a disability, only 49% were employed, compared with 79% of those without a disability. For Canadians who cannot work because of a physical or mental health condition, payments from a long-term disability insurance policy can be a critical lifeline.
Unfortunately, as important as those policies can be, they often include highly technical or confusing provisions that can make it difficult for covered Canadians to obtain the benefits they deserve.
Those provisions often include two standards by which disability is measured. Initially, to be disabled, a person need only be incapable of performing his or her “own occupation”. But later, typically after two years or so, a person will only count as disabled if he or she cannot engage in “any occupation”.
How do these two standards differ? And why does the difference matter? Keep reading to learn more.
Article at a Glance
Article at a Glance
- Long-term disability insurance policies in Ontario typically include two standards for determining whether a worker is disabled.
- The Own Occupation standard applies initially, and asks whether the worker is able to perform his or her own occupation. Later, if the worker remains unable to work, the question shifts to whether he or she can work in any occupation.
- Disabled Ontarians may qualify for disability benefits under the Canada Pension Plan or Ontario Disability Support Program, which can help fill in the gap while an insurance claim is pending.
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Own Occupation vs. Any Occupation: How the Standards Fit Together
The differences between the Own Occupation and Any Occupation standards may seem quite technical—and in some ways, they are. Insurance companies routinely try to muddy the waters to avoid paying out long-term disability benefits, forcing courts to address their convoluted arguments.
As a practical matter, the effect of the transition between the two standards is simpler to explain: It means that clearing the initial hurdle of a disability-benefits application isn’t the end of a disabled worker’s fight with his or her insurance company. Just because you qualified for benefits when you first stopped working doesn’t mean you still will two years later, even if your condition is unchanged.
One final note before we explore the technical differences between these two standards: The Own Occupation and Any Occupation standards come from insurance policies themselves. In other words, what standard you must satisfy and how you can do so will depend in significant part on the precise language included in your policy.
That’s why it’s often a good idea to consult an Ontario disability lawyer early in the process of applying for disability benefits under a disability insurance policy. A lawyer can help you understand how the principles we’re about to discuss impact your particular policy.
The Own Occupation Standard
Insurance companies being what they are, Canadian courts have had to address a number of highly technical distinctions in defining the Own Occupation standard. The courts have settled on a series of principles that can help us understand what the standard requires:
- Your own occupation means your essential duties, not minor tasks. If you can still work, but you can’t do the essential duties of the position in which you were working, then you are disabled. For example, if you manage a retail store, you may be disabled if, after a personal injury, you can only handle bookkeeping tasks.
- Your own occupation means your whole job, not each responsibility on its own. You may be perfectly capable of completing each part of your job on an individual basis, but incapable of doing them all together. In that case, you qualify as disabled.
- The standard is one of reasonableness. Ultimately, the question of disability is whether a reasonable person in your circumstances would desist from work, not whether you are totally helpless.
- Your “occupation” is not necessarily your “job”. Although we are using “occupation” and “job” interchangeably in this post, it is important to realize that the question does not concern your specific job with a specific employer, but your class of occupation, which could mean a different job (but of the same general sort) with a different employer.
The Any Occupation Standard
When the Own Occupation period expires, you will have to prove to your insurer that you are now incapable of performing “any occupation.”
- Your unique characteristics and qualifications matter. “Any” occupation does not literally mean “any”. Rather, it means an occupation for which you are reasonably suited based on your training, education, and experience.
- You may have to undergo training. You may not qualify as disabled under the Any Occupation standard if there is an occupation for which you are reasonably suited, even though you don’t have the formal qualifications for it. The question at that point becomes whether obtaining those qualifications would require substantial retraining.
- You may still be able to work. It may sound like a contradiction, but the mere fact that you return to work does not necessarily mean you don’t qualify as disabled. Courts throughout Canada have held that people who return to work on a trial basis, who return to work and are found to be incapable of performing their duties, or who try to work despite debilitating pain may nevertheless qualify for disability benefits.
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Disability Alternatives and How a Lawyer Can Help
The Own Occupation and Any Occupation standards apply in the context of private disability insurance. But there are alternatives to such insurance for those who either are not covered or who want to be sure they are protected in the event of a lengthy fight with an insurance company over benefits.
In Ontario, those alternatives include disability benefits under the Canada Pension Plan or income and employment supports provided by the Ontario Disability Support Program. Both of those programs have their own set of eligibility requirements. As with obtaining benefits under private insurance, proving eligibility for those programs can be a lengthy process.
If you become unable to work because of a physical or mental health condition, you should contact a long-term disability lawyer for help regardless of what type of benefits you are trying to qualify for. Whether you are applying under a private insurance policy, the CPP, or the ODSP, a lawyer can help you gather the evidence and present a strong case that you are entitled to benefits.
Contact a lawyer from Preszler Law Firm today for a free consultation about how we can help you with obtain the disability benefits you deserve.