LTD clients often need employment law advice
By AdvocateDaily.com Staff
“Personal injury lawyers don't necessarily know the intricacies of employment law, but the areas are very much intertwined,” says Edwards, partner with Edwards Pollard LLP.
Her firm has branched out into employment law after finding that clients fighting LTD denials also frequently run into problems on their return to work, or due to their inability to resume duties.
“As injury lawyers, we don’t always know much about employment law, so it’s important for us to either understand how it works when LTD is involved, or to refer them to a lawyer who is comfortable giving them advice on those issues, to make sure they’re receiving everything they’re entitled to,” Edwards says.
“Notice and severance is an interesting area that sometimes gets overlooked, but you want to make sure you’re looking at all avenues of possible compensation for clients,” she adds, explaining that an individual’s status as a recipient of LTD benefits does not insulate them from the possibility of employment termination.
While a person is still technically employed even if they are not working, Edwards says an employer may be able to terminate them for “frustration” of the employment contract if it becomes clear that they will never be able to return to work to fulfil their role.
“Some cases are more clear-cut than others, but it will hinge on the nature of the person’s injuries and their prospects of getting better,” she says.
After years of debate, Edwards says a landmark 2005 decision by Ontario’s Court of Appeal settled the issue of employees’ entitlement in cases of frustration, by finding that they were in fact due severance and termination pay under the province’s Employment Standards Act.
“Lawyers must not forget that an employee could still be entitled to those minimums, even if they are on LTD and not returning to their job,” she says.
Even so, Edwards says LTD insurers may attempt to categorize any pay received by an insured person related to their severance as a deduction.
“Whether the insurer can deduct severance will depend on the wording of each individual LTD contract,” she says. “Some insurers will put in a provision to get a deduction, but others are silent on the issue, so it’s critical to read through the applicable policy in order to be able to advise a client whether or not they get to keep their severance pay.”