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Long Term Disability and Wrongful Dismissal

Remember those insurance commercials featuring the "Good Hands" people. Those were the days when a cup of coffee was 50 cents, the milkman delivered and people expected to retire from the same company where they had come up from the Mail Room.

But this is the 21st Century; It costs 50 cents to put air in your tires, your doctor answers by voicemail, and your chances for freedom at 65 seem about equal to winning the provincial lottery. Competition is in, fairness, out; especially for the ill and disabled. It seems that in this age of rapidly developing trends, a dark side has emerged from the corporate obsession with downsizing, restructuring and competitiveness.

More and more employees who find themselves unable to work due to serious illness, accident or stress find that between their employer and group disability insurer, the race is on to show them the back of the hand, and the door.

For many of these people, actual termination of employment is only the last stage in a long, stressful period. The most dedicated of employees push themselves to the limit of endurance to satisfy the demands of their financial responsibilities, a sense of teamwork and the ever present furrowed brow of a skeptical supervisor. The more loyal and diligent the employee, the more sleepless nights, tossing and turning with guilt; always the decision whether to "come in" or not, even over the protests of their own medical advisors.

Like any Toronto Employment Lawyer practicing in the employment area, after almost 20 years, the development is infuriating and I have had my fair share of horror stories; a 36 year old Production Supervisor with an excellent work record lying on his hospital bed suffering with Lupus, job performance warnings left on his empty desk; a woman with breast cancer returning 3 months early from her chemotherapy, only to be told the next day she was to be the only person "restructured" in a large prosperous company; the 8 year employee of a major bank, home on medical stress leave, being called almost everyday by the Occupational Health Nurse as to when she would return to the team that needed her. Eventually, the bank cut her off from their disability program, citing some unwritten policy that she was not allowed to became pregnant while on disability. These stories - man's inhumanity to man, are not unique.

Employment law can respond, but in a confused, complex manner. In Ontario, for example, as in many Provinces, whether or not you are injured on the job or smitten with a work- related illness is a key determination as to whether you can claim from the Worker's Compensation Board or from the company-sponsored disability plan. Most of the time, this is akin to experiencing execution by slow strangulation or the firing squad.

For example, if you are unlucky enough to suffer from an illness such as chronic back problems, debilitating reactive depression or repetitive strain injury, which ate job related, but associated with an individual's genetic makeup, the employer, Workers Compensation Board and the insurance company often engage in a sad game of legal "hot potato". If and when the illness is determined to be work related, an employer is bound by the fearsome Section 54 of the Worker's Compensation Act. This is good news for the employee; while it is no picnic to deal with the Workers Compensation Board and its faceless mail system during the disability period, when the individual is deemed to be medically fit to return to the pre-injury position on light duties or a modified work plan, the employer cannot terminate the employee for up to 2 years in the absence of willful misconduct. There are few exceptions and the Worker's Compensation Tribunal polices its rules with a special enforcement office which can levy a ,000.00 penalty and a 12 months salary compensation order against the un-cooperative employer. After all, if most employers could refuse to take an injured employee back or fire them soon after, the Workers Compensation Board would have to extend financial support much longer. Is it any wonder that Section 54 is so tough?

Unfortunately, the legal status of an employee who falls ill from a non-work related injury or illness is far more uncertain.

Most disability insurers set up their first obstacle by ensuring that the Group Policy, which most employees never see, excludes a claim for a work- related illness or injury under the policy. Then, In order to qualify for disability benefits the person must apply within a stipulated time from the injury. Lastly, group policies always stipulate 2 conditions:

1. That an individual is so totally disabled as to be unable to perform all the ordinary functions of their employment for the first 24 months. After that time the rules get even tighter. Medical advisors usually have a field day with that definition and what ensues is months of endless requests for more conclusive and better medical information from the sponge-like insurance adjuster. Just as some employees feel that they will expire from exhaustion and frustration, as long as proper updated medical reports are available, the insurance companies finally cave in. Benefits eventually follow but like everything else, are limited to the specific policy, usually 60 - 80% of pre-absence salary, less any money received from EIC or supplemental income plans.

2. That a person must have the legal status of an employee during the material time of the illness or injury. Timing is everything. In most Provinces, all employment benefits must be extended during a period of lay-off or after termination-for a minimum statutory period consistent with "Labour Board" rules.

Once these conditions are satisfied, an employer who knowingly terminates an employee just before he would otherwise qualify for disability benefits to avoid premium increases might as well go for a car wash with the windows open.

The Courts have held that in addition to the standard wrongful dismissal notice of termination/compensation entitlements based on the employee's age, seniority and type of position (approximately one month per year or more), the employer may be obligated to pay all the insurance benefits an employee would have received during the entire time of the disability. This cold dish would be served up with a sour dollop of punitive and aggravated damages.

While such "bull in the china shop" employers still exist, the Courts have made this callous conduct rare since the potential risk of pain greatly outweighs the nominal gain. In many situations, it is possible to make a viable claim for disability benefits at any time during the entire notice period - Unless, of course, the insurance policy specifically limits the claim period in writing and the restriction was brought to the employee's attention.

However, many employers appear willing to be engaged in a more insidious practice of terminating an employee while on disability benefits or having just returned from short term/long term disability leave. To some, the rationale is clear - in an age of economic restructuring someone has to get thrown from the lifeboat. Why not the rehabilitated employee who may still require an extended period of light duties or moderated pressure that the employer cannot tolerate or afford. The problem is that this trend has infested the grey clouds that are normally situated in legal netherworlds and employees do not yet have the clear tools to respond.

In the now famous case of McKay v. Carrico, the Ontario Court of Appeal stated that employees could claim both disability benefits and severance if they are terminated while disabled. This potential for a double indemnity claim should have made it an effective deterrent. However, like any good mousetrap, employers have been consistently and successfully finding ways of skating around the rules by two common methods: (a) They allege that by virtue of a long absence and permanent inability to perform the job, whether on long term disability benefits or not, the employee has frustrated their employment due to factors outside of either party's control. (b) Many employees who fail to constantly keep their employers informed about their medical status during the absence and the probability of recovery, in writing, are deemed to have abandoned or resigned their employment.

While the resignation argument beggars common sense, and is dealt with accordingly, the Doctrine of frustration is both perverse and dangerous - most of all because some Courts have accepted it in certain circumstances. The notion that an employee can forfeit rights of severance accrued over long years of service by reason of a legitimate absence due to illness or injury seems arbitrary, to say the least. After all, having been approved by the company disability insurer, would not common sense dictate that an employee's job must be held open without pre-condition or question until the Doctor reports him ready and able to return to work.

Accordingly, like many aspects of employment law, knowledge of one's rights is the best preventative medicine. The Courts have consistently said that it is a question of fact in every case of whether or not the employee is permanently and substantially unable to perform the pre-injury functions and responsibilities. Fortunately, the onus is on the employer to prove this point. An employee who makes diligent efforts to keep in contact with their employer, in writing, prevents assumptions being made by the employer that the injury is permanent and that the job has been abandoned. Medical reports must be submitted that address the issue of the timing for return to work as -opposed to leaving it indefinite. These reports must be submitted, with proof of delivery, so that the employer is not given the opportunity to plead that the termination occurred because they were unaware of the person's whereabouts and medical status;

Furthermore, as often happens when the employee notifies the employer of his intentions to return to work - and gets that old rejected feeling - the employee must document the request by either registered letter or fax confirmation. This leaves no room for suggestion that the job was held open but the returning employee failed to co-operate.

Finally and most importantly, the readiness to return to work, only after medical approval, must be coordinated with the disability insurance company, who are more than willing to "shut off the tap" in the hopes of foisting the responsibility onto the employer at the earliest opportunity. Too many employees disregard medical advice and attempt to go back to work before they are ready, only to have the door slammed in their faces by the employer, their long term disability benefits already having been discontinued and their E.I. sickness benefits having been forfeited due to lack of payroll contribution for more than 104 weeks.

This is not an enviable situation, to say the least, but one that is all too common in this age of re-structuring, re-organization, budgetary restraints and a glaring absence of remorse and compassion for those among us who are at their most vulnerable.

In the end, it remains for the Courts to recognize and put a stop to this growing trend and, as they have in the past, balance the bottom line needs of corporate Canada with fair treatment for diligent employees who, through no fault of their own, have met with illness or injury, and just want the opportunity to get back to work and get on with life. The best practical approach for anyone faced with this situation is to refrain from signing anything, get some rest, and call their lawyer first thing in the morning.


About the Author: Bram A. Lecker, B.A. LLB. as an experienced Toronto employment lawyer , is dedicated to the employees seeking their rights in employment matters, wrongful dismissal, constructive dismissal, harassment in the workplace, benefits, employment contracts and severance.




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