The general thematic test of the disability claim is continual disability, not for just the qualifying period but for the entirety of the claim.
A return to work in itself, however, has been defined to be an inconclusive test that the disability has ended to deny the plaintiff’s claim.
An example of such a fact situation is one in which the plaintiff, a secretary, returned to her work for six months after an accident in which she suffered severe injuries, including a broken back. 1
She was unable to function properly and her work performance deteriorated. She lost consciousness and was taken from her place of employment to hospital. She did not work again. Instead, she claimed against her insurer for disability benefits under her policy.
The plaintiff had been denied benefits by the defendant on the ground that she had returned to work and was capable of performing the duties of her employment.
However, Reid J. found that she was unable to perform all her duties during the six months she returned to work, and that those she could perform were managed only “by dint of extraordinary effort”. He described it as “more an attempt to succeed against odds than proof that she had recovered her capacity to work”. He held that she should not be penalized for attempting to return to work and that her unsuccessful attempt to do so demonstrated her incapacity.
This decision illustrated that the test for disability is not answered purely by the fact of a return to work. The court will review the circumstances of the return to work to determine if the plaintiff still remained disabled.
This was also the case in the decision of the late Lissaman J. 2 in which the court found that the plaintiff remained disabled, notwithstanding her return to active employment. Such was also the conclusion of Osler J. in the 1980 case of Morgan v Dominion.
This concept has been firmly entrenched. There is a strong policy rational inherent in the reasoning as the contrary view would provide a disincentive to return to active employment.
It is evident that the court will look to the substantive reality of the context to determine whether or not the insured remained “disabled” notwithstanding a return to active employment.