Undiscovered Brain Injury Leads To Questions About Disability Coverage

When an injury happens at work, people can turn to the short-term or long-term disability benefits provided by their employers, should they have such policies in place. Some injuries are of such a nature that they can be identified right away, while others may take a long time to show up, such as brain injuries. What happens when an employee no longer works for the employer they had when they experienced a brain injury and the symptoms don’t show until after their employment has ended? This was a question recently tackled in a decision from the Court of Appeal for Ontario.

The accident

The employee was attending an employee-sponsored work event in Costa Rica on April 16, 2005. During this trip he suffered a severe back injury. Following the accident the employee was off work for nearly four months, returning in August 2005. Even after his time off, his work performance deteriorated. His responsibilities were continuously reduced over the next three years and he eventually quit the job in frustration.

The employee got a new job, but the employment relationship did not work out, and his employment was terminated in under a year on the job. It was around this time that the employee realized he was unaware of the seriousness of the brain injury he experienced in Costa Rica. He was told that since the injury occurred while at work with the employer, he would have to apply for benefits under the long term disability plan he had at that time.

The claim

The employee submitted his application for long term disability benefits on September 9, 2010. His application was denied on November 1 of that same year, with the proceedings having been commenced on April 11, 2011.

While both parties agreed that the employee had been made unable to perform his job since his injury in Costa Rica, but the employer took the position that [h]e had access to [Long Term Disability] benefits if he applied while he was employed and, therefore, covered. Once he was outside of this coverage and/or failed to meet the Policy’s terms, he no longer had entitlement to claim”; and that “[t]he policy indicates that coverage ends when employment ends.”

The trial and appeal

The court had three issues to analyze. The first is whether the employee was entitled to coverage under the policy of his previous employer. The trial judge had determined that there was no coverage in place, agreeing with the employee’s position that the “termination of coverage” clause applies in this case. It states a number of dates for which terminations of coverage could occur, with one being “the day on which you cease to be Actively Employed.”

The court found that language did mean coverage does not continue when an employee no longer works there. However, the “total disability benefits” section of the policy states that a monthly benefit will be paid if the disability occurs during the coverage period.

The court summarized its position on these contradictory policies by writing,

“does not contain the type of exclusionary language that terminates coverage for undiscovered disability claims the employee had and that originated during their employment, when their employment ceases. To so conclude would leave former employees, like the appellant, in the untenable position of having no disability coverage from either their former employer or any new employer. Such a result would be contrary to the very purpose of disability insurance and the plain meaning of the coverage provision.”

The second question was whether the employee submitted a timely proof of claim under the policy, which required claims to be filed “within 90 days of the date benefits would begin”.

The court found that while the employee did miss the period by, at most, 10 days, denying him access to benefits would not make sense in this case. The court wrote,

“The (employee) was injured during his employment when he was covered by a Long Term Disability policy, but did not appreciate the significance of his injury during his employment. The (employer) has conceded the (employee’s) total disability as of the date of the accident and that he enjoyed coverage under its policy at the time of his injury. The (employee) left his employment sometime after he was injured but before he was aware of the extent of his injury. The imperfect compliance with the requirement to file the proof of claim form may only be a matter of 10 days at most. His employer and the insurer were aware that he had suffered a serious injury that included a brain injury at the outset. All of the foregoing facts have been known to the parties for years now.”

Finally, the court had to consider whether the employee met the 60 day limitation period for bringing a claim. Again, the court sided with the employee, finding that he was not aware of his brain injury until much later, thus he was still within the 60 day limitation period.

It is best to contact an experienced personal injury lawyer as soon as possible following an insurance company’s denial of your disability claim to ensure a limitation period is not missed and your right to dispute the insurance company’s denial is not lost altogether. We will help you put together the evidence you need in support of your claim and help you resolve the conflicts you are facing. The disability lawyers Derfel Injury Law will work tirelessly on your behalf. Our office is conveniently located in Toronto. Call us at 416.847.3580 to schedule a visit at the individual office closest to you or contact us online.