Personal Injury

Any-occupation test a common reason to lose disability benefits

By Patricia MacInnis, AdvocateDaily.com Senior Editor

Toronto personal injury and disability lawyer Nainesh Kotak tells Global News that his client’s experience of being cut off disability benefits while undergoing chemotherapy treatment for intestinal cancer illustrates a persistent problem with workplace disability benefits.

The man was diagnosed in May 2016 and received a monthly income of just under $2,000, but in March 2018, he was told his benefits would be terminated as of July, Global News reports.

The insurance provider of the employer’s group disability benefits said he was no longer eligible to receive payments because his illness didn’t prevent him from performing less-strenuous jobs that his background might qualify him for, the article states.

“Often, eligibility for group disability benefits is subject to two tests,” Global News reports. “The first, which is administered when the worker first claims disability, is aimed at verifying whether she or he has become unable to perform her or his regular job, something known as ‘regular-occupation test’ or ‘own-occupation test.’

“But after a period of time, usually two to five years, the criteria for eligibility become more stringent. Workers are only allowed to maintain their benefits if they are deemed unable to perform any job for which they may be qualified given their skills and experience, something called ‘any-occupation test.’”

The insurer rejected two appeals where the man provided evidence to support his claim that severe side effect from the chemotherapy rendered him unable to work, the article states.

“The documents included a letter from his oncologist at Toronto’s Mt. Sinai Hospital, which described ‘severe’ symptoms including nausea; dizziness; fatigue; sharp, shooting abdominal pains; loose and irritable bowels and headaches, among others,” and that because of those side-effects, the man was unable to perform labour of any kind, Global News reports.

In a separate document, the insurance company wrote that its medical consultant advised that drugs like Gravol, Imodium or Nabilone might be able to relieve some of the man’s symptoms, it adds.

But the man’s doctors never recommended the over-the-counter medications, says Kotak, principal of Kotak Personal Injury Law.

He says although the case “raises eyebrows,” the any-occupation test is a common reason workers lose their employer disability benefits.

Kotak says after Global News contacted the insurer for its report, the company stated it would reinstate the man’s benefits retroactive to March 2018.

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