Disability Issues In The Workplace

The Elimination Period

The third issue to be examined is the extent of the elimination period. To be successful in the claim, the insured must establish that he or she has continually met the relevant test of disability through to the date of benefit entitlement. 1

This period will vary by policy. The more expensive the premiums, the shorter will be the elimination period. It is not sufficient that the insured be disabled on the commencement of benefits. He or she must have continually been disabled from the onset of the disability through to this date. The plaintiff should be cognizant of this need for such proof, not only based on medical reports to accompany the claim in case of a dispute, but by creating his or her own diary to record symptoms on a contemporaneous basis and assembling all objective evidence to prove this continuum of disability.

Should the claim be proven on the first eligible date, the insured must be alive to the need to continue this proof through to the date of trial as the disability must always be shown to be continual for the claim to succeed. In addition the insured must be wary of the changing test from “own occupation” to “any occupation”, which is usually two years from the first date of disability or the commencement of “own occupation” benefits.

Such a successful plea by the insurer, namely, that there was not a proven continual disability during the elimination period, was accepted by the trial judge and the Court of Appeal in a 2007 decision. 2

The policy mandated, in essence, a complete disability for the elimination period, which was not met as the plaintiff was able to work part-time which in this instance was an exclusionary term. The policy must be read carefully.

 

 

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