Chronic Pain and Long Term Disability Claims

Chronic pain that results in claims for Long Term Disability (LTD) can present challenges to insurers, lawyers, treatment providers, and most of all the individuals who are suffering and unable to work.  Despite advances in the medical community that further our understanding of this sometimes disabling condition, and despite the Supreme Court of Canada declaring “…there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real…”, skepticism remains, and many legitimate LTD claims are denied. 

This article will focus on a few key topics relevant to Long Term Disability claims arising from chronic pain, including: 

• What is chronic pain?
• How prevalent is chronic pain?
• Chronic pain and Long Term Disability insurance
• The Supreme Court of Canada addresses chronic pain
• Strategies for Long Term Disability chronic pain claims

What is Chronic Pain?

Chronic pain is usually defined as symptoms that persist beyond the normal expected time of healing for the specific underlying injury or illness, often six months or longer. It is intrusive in nature, unremitting, and usually not susceptible to conventional methods of treatment. Chronic pain interferes with an individual’s activities of daily living, including the ability to work. It can be accompanied by or associated with multiple other medical conditions, including:

• Depression
• Anxiety
• Fibromyalgia
• Fatigue
• Insomnia
• Headaches

How Prevalent is Chronic Pain?

More than 20% of Canadians experience chronic pain, according to Statistics Canada. That’s six million Canadians who suffer from pain everyday. These numbers are startling, especially considering chronic pain can and often does result in severe disability.

Chronic Pain and Long Term Disability Insurance

Many people with chronic pain can continue working. For others, their symptoms may become so severe it is impossible to maintain employment. This can have a devastating impact on finances and lead to a deterioration of mental health, including anxiety and depression.

For those with Long Term Disability benefits coverage, the LTD insurer may be required to pay benefits to replace a portion of lost income when working is no longer possible.

Unfortunately, Long Term Disability claims that arise from chronic pain are often denied. This is usually because insurance companies want definitive proof of a disability before it will agree to pay. LTD insurers sometimes refer to this as “objective evidence”. The requirement for objective evidence is problematic for numerous reasons.

First, LTD policies of insurance do not require “objective evidence”. Rather, the insurer is required to pay benefits when disability prevents the individual from continuing to work, regardless of whether the disability can be objectively verified or not. In this sense, claims for chronic pain face similar challenges to claims arising from depression, anxiety, and other mental health conditions.

Second, the nature of chronic pain is such that it cannot be confirmed with an X-ray, MRI, blood work, or other diagnostic test, the way some injuries or illnesses are diagnosed. Chronic pain is something the person feels, and by definition the pain persists beyond typical recovery times. For this reason chronic pain is sometimes referred to as an invisible disability.

A third difficulty is that doctors cannot always identify the source of the pain. Sometimes there is an underlying cause, such as a fracture or nerve impingement, but more often than not there is no simple explanation for why the pain continues, even long after the underlying medical issue has resolved. If the doctor cannot explain it, the LTD insurer is less likely to pay.

Another problem is that chronic pain can be difficult to treat. This can lead to LTD claims being denied for failure to participate in “appropriate treatment”, even though medical experts do not all agree what appropriate treatment is for chronic pain. Common treatments include physical therapy, psychological counselling, acupuncture, massage, injections, or any combination of these or other modalities. Opiate derived medications are common, but are highly addictive.

Finally, and perhaps the biggest problem with an insurance claim related to chronic pain, is skepticism. Many insurers don’t want to pay benefits for a condition that could theoretically be faked or exaggerated. As a result, many LTD claims for chronic pain are denied based on skepticism, although that will rarely if ever be the stated reason. The insurer will instead state something like “We are unable to understand how your medical condition is disabling” or “Due to a lack of objective medical evidence…”. Usually Long Term Disability Lawyers can effectively resolve denied claims without going to court. Rarely, chronic pain cases go to trial. One case went all the way to the Supreme Court of Canada.

The Supreme Court of Canada Addresses Chronic Pain

In Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, the Supreme Court of Canada weighed in on chronic pain. The decision stems from two individuals, both of whom had been diagnosed with chronic pain following workplace injuries, and both of whom had their workers’ compensation benefits denied. The court held:

That was 2003. Since then, there has been a shift among many judges and doctors in accepting that chronic pain is real and disabling. Unfortunately, many insurers don’t see it the same way, and as a result it is common for chronic pain disability claims to be unfairly denied.

Strategies for Chronic Pain Long Term Disability Claims

There are several strategies that can help increase the chances of having Long Term Disability benefits approved. These include:

 

1) Document The Claim

Disability insurance claims are largely decided on the basis of medical records. Insurance companies rarely accept a claim on the basis of the individual’s self reporting of pain alone. Rather, compelling medical proof of impaired function is required.

This usually means more than a brief note from a treating doctor. A doctor’s note that only says the patient can’t return to work is not enough. The report must indicate why the patient cannot work, and include specific functional limitations. Ideally, the family doctor, or other treating specialist, would prepare a detailed report that includes a summary of the occupational duties (both physical and mental), specific ways that chronic pain limits the ability to complete the important duties of the occupation, and a statement that the condition will not improve or may get worse with a return to work.

Most doctors in Ontario are exceptionally busy, and cannot commit to preparing a detailed report that meets the expectations of the insurance company. This is one reason why Long Term Disability lawyers turn to experts.

 

2) Use of Experts

The best Long Term Disability lawyers have the resources necessary to have clients assessed by experts in chronic pain. Chronic pain experts have backgrounds in physiatry, psychiatry, orthopaedic surgery, and other fields. These experts can significantly improve the strength of a denied claim.

 

3) Credibility

Because there is no objective way to assess or measure chronic pain, many claims come down to credibility; that is, whether the self reporting of the pain and loss of function is believable. There are ways of enhancing credibility:

• Do not exaggerate: exaggeration will be seen as the equivalent of lying for financial gain by an insurance company. Be truthful, candid, and careful what you say when communicating with the insurer.
• Attempt a return to work: the most credible chronic pain claims are those where the person at least attempts to return to work, even if likely to fail. Otherwise, the argument will be “you didn’t even try”.
• Attempt to get better: engaging in regular treatment, including active therapy, demonstrates an effort to improve your level of function. If you cannot afford facility based treatment, do whatever stretches and exercises you can at home and document your efforts.
• Secure witnesses: If co-workers, neighbours, and others who do not have an interest in the outcome of your claim support disability, that can be very compelling evidence. A brief note from a boss or co-worker that confirms your difficulties before you stopped working can be very helpful.
• Be cautious with online activity: It is almost certain that the LTD insurer will conduct online searches, especially on social media platforms, in an effort to discredit you. Think twice before posting anything that could be misinterpreted.
• Consult a Long Term Disability lawyer: There are many other tips and strategies to improving your chances of having your claim approved or denial overturned, depending on the facts of individual cases.

Conclusion

Because claims for Long Term Disability arising from chronic pain create unique challenges, it is important to do everything possible to increase your chances of having the claim approved. If the claim is denied, most cases can be resolved with the help of a Long Term Disability lawyer. Michael Jordan is a LTD lawyer with offices in Toronto, London, and Ottawa serving all of Ontario. Please contact Michael now for a free assessment of your claim.

 

 

About The Author Michael Jordan is a long term disability lawyer with more than 17 years experience litigating all types of insurance claims.  He is a founding partner of the Bay Street firm Jordan Honickman Barristers.   Michael represents clients across all of Ontario, with satellite offices in Ottawa and London. Email: mjordan@jhbarristers.com Direct Cell: 416-460-6823