Teachers, OTIP, and Long Term Disability

Teachers in Ontario are usually entitled to long term disability benefits (LTD) coverage through the Ontario Teachers Insurance Plan (OTIP).  It is important to understand your rights when applying for benefits, and especially in the event your disability claim is denied.

About OTIP

OTIP is a non-profit trust that manages and self-insures a long term disability benefits plan for unionized teachers in Ontario.  Plan members are entitled to benefits if they meet the test of disability, which changes after two years.

For the first two years, disability is defined to mean you are unable to perform the significant duties of your regular assignment.  This is commonly referred to as the “own occupation” period.  After 24-months, you are considered disabled if you are unable to be gainfully employed, also referred to as the “any occupation” test of disability.  Because teachers are highly educated with a very specific skillset, there often isn’t a significant difference between these two definitions of disability.

The OTIP benefits plan is customized for teachers, and includes numerous provisions that are different than other group long term disability policies. Some of these differences include:

• Early intervention and rehabilitation services – OTIP administers programs to facilitate a return to work. In some circumstances these can be very helpful. In other cases, it may not be appropriate to participate without first seeking legal advice from an LTD lawyer.

• Benefit indexing – The OTIP plan provides for indexing of benefits, meaning the benefit payment increases over time with inflation.

• Benefit end date – OTIP disability coverage usually ends in conjunction with pension entitlement, which takes into account both your age and years of service.

• Pension contributions – Teachers in receipt of OTIP disability benefits continue to earn credit in the Ontario Teachers’ Pension Plan without making contributions.  If OTIP denies a claim, pension contributions typically stop if the teacher does not resume working.  These pension contributions can potentially be at least partially recovered by adopting the correct approach in litigation.

• Ontario Teachers’ Pension Plan (OTPP) Disability Pension – You may apply for a full or partial disability pension though OTPP, but accessing this pension is usually a last resort, since doing so has significant implications for your pension and employment status.

• CPP disability assistance – If you apply for CPP disability and are denied, an OTIP disability services representative may be able to assist with the CPP appeal.

• Appeal process – If OTIP denies your claim, it will offer to assist with the appeal.  This may be helpful when it comes to gathering additional medical evidence.  

• Union grievance versus lawsuit – If an appeal is not successful, teachers usually have the option to choose between filing a grievance and a commencing a lawsuit.  The union will not take on every case, however, and the selection process can be lengthy.  

• Integration with Manulife – For many years, OTIP and Manulife had an agreement whereby OTIP would administer claims, and Manulife would pay the benefits.  This has changed recently, so it is important to know whether one or both insurers need to be involved.  

Making an OTIP Disability Claim

The decision to apply for long term disability benefits should be made in consultation with your doctor.  If your primary care provider does not support the claim, neither will OTIP. To apply, you must first obtain an LTD application package, which includes three forms:   

• Member’s Statement – You complete this document. In addition to some basic information about yourself, you must describe your illness, treatment, and the impact the medical condition has on your activities and ability to work.  The information you provide should be accurate and consistent with the Attending Physician’s Statement.

• Attending Physician’s Statement – This form is completed by your primary care physician, usually a family doctor, but may also be completed by a specialist.  Generally, the more information the better, so a copy of recent clinical notes and records should be provided as well.

• Plan Administrator’s Statement – This is to be completed by the LTD policy administrator, usually the school board.  It contains information such as your employment start date and salary.

An OTIP representative will then contact you to conduct a telephone interview.  Again, it is important that any information you provide be accurate and consistent with the available medical evidence.  Significant inconsistencies may lead to claim denial. 

If approved, benefits will start after the waiting period.  Many teachers will have sufficient sick days to cover the waiting period. During the waiting period, and while on claim, you must continue receiving reasonable and customary care for your medical condition on an ongoing basis. OTIP requires appropriate treatment with a recognized specialist who has expertise treating your illness.  This may include, for example, taking medications as prescribed.

If benefits are denied, either after the initial application or after a period of benefit payments, you will be provided with a letter explaining the decision and information about appealing.

Why Are OTIP Claims Denied

The two most common reasons OTIP denies claims are lack of evidence of disability, and disagreement regarding the ability to be gainfully employed after two years of benefit payments.

Lack of Evidence of Disability

Some medical conditions are easy to understand.  Disability claims arising from cancer, heart attack, stroke, and neurological conditions such as MS and Parkinson’s are highly sympathetic and likely to be approved.  But some conditions that can be equally disabling are harder to establish, especially where there is little or no objective evidence.  For example, disability caused by depression, anxiety, chronic fatigue, chronic pain, and fibromyalgia are much more likely to be denied on initial application, since many of the symptoms, restrictions, and limitations are subjective. 

Gainful Employment

OTIP knows that teaching is a difficult profession, often with high physical and cognitive demands. Many claims are approved for the initial own occupation period, but denied after two years when the test changes to gainful employment or any occupation.  This second test of disability does not mean if you can work in any occupation you do not continue to qualify. Rather, gainful employment must be assessed having regard to your training, education, experience, limitations, and commensurate earnings.  For teachers who have taught for many years, there is a strong argument that there is little distinction between the own occupation and any occupation tests of disability.

OTIP Appeals

If you choose to appeal, an OTIP disability service representative will offer to assist.  Some teachers find this very helpful, although as a general rule most appeals are denied.  The exception is where there is new compelling evidence of disability.  Remember, the appeal is to the same insurer that denied the claim in the first place, not an objective third party decision maker.

Also keep in mind there is a time limit for taking legal action and that limitation period is not suspended while appealing.  If you miss this deadline while pursuing an appeal, you may not be able to proceed further.  Generally, in Ontario you have two years from the date of the first denial to commence legal action, after which you may be out of time.

Also consider this blog post for help with writing a long term disability appeal letter. 

OTIP Litigation

If the appeal is not successful, you have the option to proceed with either binding arbitration through the union grievance process, or litigation with the help of a long term disability lawyer. Unions are not able to take on every case, and some have a very long selection criteria.  Sometimes it takes more than a year for the union to decide whether it is willing to assist.

If you decide to dispute the OTIP denial by way of litigation, or if you are forced to do so because the union will not take on your case, the lawyer you choose will have a very significant impact on the outcome of your claim. Consider the following before retaining a lawyer:  

• Does the lawyer focus primarily on long term disability claims?  Many personal injury and employment lawyers are skilled in those areas, but might lack the expertise required to litigate disability claims. OTIP litigation, in particular, is a highly specialized area of the law with many unique considerations most personal injury and employment lawyers are not familiar with.

• Will the lawyer you initially speak with handle your claim, or will he or she pass you off to someone else? This is common in large firms with large advertising budgets. 

• Can the lawyer direct you to positive reviews written by teachers who have successfully litigated with OTIP?

• Does the lawyer have a plan to recover your pension losses?

• Does the lawyer offer a competitive contingency fee retainer agreement?  Does the fee structure change if there is a full and final settlement versus reinstatement? Who is ultimately responsible for payment of disbursements, regardless of the outcome?

Conclusion

The OTIP disability benefits plan is a highly specialized policy that requires expertise to successfully navigate, especially in the event of a claim denial.  For more information, contact Michael Jordan for a free consultation.  All calls and form submissions are confidential and go directly to Michael.

 

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