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Lack of a Positive COVID-19 Test and Long-Term Disability Benefits

Lack of a Positive COVID-19 Test and Long-Term Disability Benefits

By:

Posted January 14, 2022

CTV News recently did a story noting that the Omicron variant is causing a rapid increase in COVID-19 cases and hospitalizations while, at the same time, the guidelines for who can get a PCR test have been tightened, and rapid tests are almost impossible to come by. This raises the question: If you get sick from suspected COVID -19, but do not have a positive PCR test to confirm the presence of the virus, will you be able to get long term disability benefits if you are one of the people affected by the disabling symptoms of “Long COVID”.  In other words, if you do not have a COVID -19 diagnosis based on a positive PCR test, will your long term disability insurer accept that you are disabled?

CTV News contacted several Canadian disability insurance companies with this question and received the following responses:

A spokesperson for Canada Life said that, when the company assesses a disability claim, they “consider the information provided by the individual, their healthcare practitioners and employer, if applicable, and the terms of their group or individual disability policy. We ask for any COVID‑19 test results, if available.” In the absence of test results, Canada Life will assess a claim based on the symptoms, required period of any self-isolation, and the “impact of the individual’s medical condition on their functional abilities.”

Desjardins said that “If the employee can’t provide a PCR test due to unavailability, Desjardins will accept as proof of disability a self-declaration including a picture, dated and signed, of a rapid test done at home.” If the employee is unable to get a rapid test, they may apply with “only a self-declaration form during times where rapid home tests are difficult to get.” However, the self‑declaration forms will only be accepted to recognize an initial disability period which matches provincial public health recommendations, generally ranging from 5 to 10 days, and contractual waiting periods will apply. Desjardins said that longer periods of disability will require additional medical proof, but did not provide details.

Sun Life has been monitoring the evolving environment, including the development of new variants like Omicron, but currently there are no changes to their policies. “Clients are not asked to prove (via a test) if they have or are recovering from COVID-19,” the statement reads. “With PCR test shortages and backlogs across the country, our Group Benefits business is now accepting a positive rapid antigen test as confirmation of a COVID-19 diagnosis for short-term disability (STD) claims.” “Across Sun Life, we continue to take a long-term view of risk. It’s too soon to fully understand what permanent changes the industry may need to make to our guidelines or requirements,” the statement said.

So what should you do if you suspect that you have contracted COVID-19 because of your symptoms but you do not qualify for a PCR test and you cannot get your hands on a rapid home test?  How can you improve your chances of having a subsequent application for long term disability benefits accepted in the absence of a PCR test supporting a diagnosis of COVID-19?

The first thing to remember is that you are not required to support an application for disability benefits with a diagnosis, supported by medical test results, unless that requirement is clearly spelled out in your insurance policy. Court decisions have confirmed this in cases where the application was denied based on the absence of a diagnosis confirmed by medical tests:

Initially, (the adjuster) testified that she required a diagnosis before considering further benefits, even though one is not required by the policy.

Rejecting the plaintiff’s claim for … lack of information regarding the medical tests performed by the plaintiff’s physician fails to address the issue of whether the plaintiff was in fact disabled within the meaning of the policy even though the nature of the underlying disease remained temporarily unresolved.

Warrington v. Great West Life Assurance Co.
B.C.S.C. (1995) 7 W.W.R. 428

Unfortunately, not all adjusters comply with this principle of good faith adjusting when faced with an application which is based on subjective symptoms that have not resulted in a test‑confirmed diagnosis:

The defendant’s attitude underscores the bad faith pervasive in this case.  The plaintiff was viewed with suspicion and her “self‑reporting” deemed suspect, even though self‑reporting is the primary method of information gathering that all doctors … employ in order to make a proper diagnosis and treat MS.

Asselstine v. Manufacturers Life Insurance Company and U.B.C.
B.C.S.C., Docket: Vancouver S001583, Morrison J. July 15, 2003, para. 206

I have only seen one disability policy which contained a requirement that an application for benefits be supported by the results of objective medical tests.  I have seen several applications rejected based on the lack of supporting objective medical tests, despite the absence of this requirement being in the policy.

The issue to be decided when someone applies for disability benefits is not “What is the name of their medical condition?” but rather “What are their symptoms and do those symptoms prevent them from performing the essential duties of their employment?” Insurance companies will not hesitate to deny an application, despite the diagnosis of one or more serious illness or disease, if it does not include detailed information outlining the applicant’s symptoms and functional limitations. I have seen an application for disability benefits by a person with terminal cancer denied because the diagnosis alone did not establish the inability to work.

So, if you are ill, whether from COVID-19 or some other illness, it is important to maintain a record of your symptoms and how they are affecting your ability to do your job. Let your health care provider know what symptoms you are experiencing, how frequent and severe they are, and how they are affecting your ability to function at work and at home.  Don’t be shy about letting your co-workers and supervisor know that you are struggling to keep up with your workload or maintain the quality of your work.  If you are working remotely, the observations of your family could corroborate your struggles.

In the case of suspected COVID-19, you should record when you were notified that you may have come in close contact with someone with COVID-19, when you started having symptoms, when you took a rapid test (if applicable), when you tested positive (if applicable), and when your period of isolation began and ended. Such a record could be of critical importance if your illness results in a prolonged work absence and the need to make a long term disability claim.

This blog post was written by Edward (Ted) Masters, a member of the Disability Insurance Claims and Personal Injury teams.  He can be reached at 613-566-2064 or at ted.masters@mannlawyers.com.

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Ted Masters

Ted Masters

My practice is focused on helping people who have been injured in car accidents or through medical negligence or who have been denied disability insurance benefits. With over 40 years of experience as a personal injury lawyer, I understand how a serious injury or denial of disability benefits affects not just my individual client, but their entire family. I am alert to each client’s individual physical, emotional and financial needs and challenges. I work to achieve an outcome that is client focussed. As a trained mediator, I understand that my client’s personal goals must be met in order to come to a satisfactory resolution of their case, preferably through a reasonable settlement, but by trial judgement if necessary. Although assisting individuals has been the focal point of my legal career, my clients get the benefit of my wide range of litigation experience including disability claims, intellectual property litigation, commercial disputes, Indian... Read More

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