With regard to a Long-Term Disability claim, being classified as “totally disabled” can mean more compensation for a greater period of time, without having to fight the denial of maximum disability benefits.
A broad definition of “total disability”
In British Columbia, a “total disability” does not mean that you are physically unable to work at all. According to Supreme Court of Canada Chief Justice Laskin, “the test of total disability is satisfied when the circumstances are such that a reasonable [person] would recognize that he should not engage in certain activity.” In other words, you don’t have to be paralyzed or bed-ridden to qualify for a total disability injury claim.
What is total disability?
Many people think total disability only includes people who “cannot work any occupation long-term.” However, you may also be considered “totally disabled” if:
Examples of total disability in Canada
A wide range of injuries may be considered a total disability, including:
A disability may broadly be considered as anything that interferes with independent living activities, recreational community activities, or personal relationships, thus inhibiting quality of life. The Veterans Affair of Canada has an informative resource describing each of these injuries in greater detail.
Disability Test 1: Loss of function
The adjuster will assess your medical records, but a diagnosis is not needed to declare you “totally disabled.” Rather, the adjuster will examine your loss of use or function. You can receive up to 100% total disability for your injuries or sometimes less. For instance, if you sustained a frozen shoulder in a car accident, you might be assessed at 35% of a total disability. If your earnings are $4,000 a month, you may be awarded $1,400 a month for loss of function. Awards can be payable up to age 65.
Disability Test 2: Loss of earnings
Another method of determining total disability status applies in exceptional cases where loss of function does not tell the whole story. Workers who cannot return to their pre-injury occupations may be eligible to receive vocational rehabilitation assistance, but the worker suffers a significant shortfall in compensation. For instance, if you received a loss of function award for $1,400 and can find suitable work earning $1,500 a month, the total compensation of $2,900 is a far cry from the $4,000 you used to earn. Therefore, you may be eligible for a loss of earnings award to help restore your standard of living now that you have a “total disability.”
A holistic approach is taken
Disability claims can be complex. Much of your LTD claim is open to the discretion of the adjuster and/or the judge presiding over your claim. All aspects of a potential disability status must be considered in fairly assessing a person’s condition for work. Court justices have acknowledged that it can be difficult to seek gainful employment, and admit it would not be reasonable to assume a person is “employable” because transferrable skills match a job description.
Sometimes people made it to their current position based on interpersonal relationships rather than concrete skills or aptitudes. Sometimes employers are willing to keep an employee they see as likely to improve but terminate the employment when no progress is made. A number of complex conditions may affect an injured person’s ability to earn a living wage.
A long term disability law firm like Preszler Law in British Columbia can help you understand your limitations, the LTD assessment, and the amount awarded. When necessary, we advocate for your right to greater compensation. It costs nothing for a free consultation with an experienced lawyer, so call the schedule your appointment today.