Definition of “Any Occupation”
“Any occupation” in a disability insurance policy usually means “any reasonable occupation.”
Courts do not interpret insurance policies literally. They inject some realism into the wording of insurance policies and will resolve ambiguities in coverage and interpretation of insurance policies in favour of the claimant. After all the insurance company is the one that controls how an insurance policy is worded and any ambiguity should be resolved in favour of the claimant and against the insurer.
The conclusion from these cases is that being disabled from “any occupation” does not mean that you are not disabled if you can only do trivial work.
In Materi v. Confederation Life Insurance Co. (1999) A.J. No. 528, an Alberta decision, Mr. Justice Burrows dealt with a female claimant claiming disability from irritable bowel syndrome (she was an accounting clerk for a school division). In evaluating the definition of disability and how much proof is required to prove disability, Justice Burrows quoted with approval and adopted the treatment utilized in other disability cases; Justice Burrows stated at paragraph 22 and 23:
The question is whether Ms. Materi’s condition makes her unable to work in any occupation for which she is or may become suited.
<>This same question arose in respect of another plaintiff covered by the same plan in Johnston v. Alberta School Employee Benefit Plan (Trustees of) (1995), 31 Alta. L.R. (3d) 116 (Alta. Q.B.). There Mason J. (paragraph 39) adopted the approach described by Baynton J. in Bacon v. Saskatchewan (1990), 88 Sask. R. 182 (Sask. Q.B.)
The onus is always on the plaintiff on a balance of probabilities to establish that she is totally disabled within the definition of the Plan. Once the plaintiff has made out the prima facie case of total disability (i.e. that her medical condition is such that she is likely incapable of substantially performing any reasonable occupation for which her training, education, or experience have fitted her), the onus shifts to the defendant to prove that there is specific occupation that the plaintiff is capable of substantially performing. The plaintiff is not required to prove a negative, (i.e) that she is not capable of performing each and every conceivable occupation that may be reasonable in light of her background.
Justice Burrows also evaluated how literal one must be in evaluating disability and quotes with approval at paragraph 43 from Johnston:
“Total disability” defined in terms of “any occupation” or even “any reasonable occupation”interpreted literally or in the strict sense leads to an absurdity. Such interpretation effectively nullifies coverage under the policy unless and insured establishes he or she has been rendered almost helpless. The rules of interpretation and construction of contracts in insurance law require the definition of “total disability” be interpreted within the context of the coverage provided by the insurance plan. Contracts or (sic?) insurance are contracts of utmost good faith on the part of both parties. This imports principles of fairness for both the insured and insurer when interpreting disputed provisions in an insurance policy by having regard to the nature, extent and purpose of the insurance coverage provided.
In the Bacon v. Government of Saskatchewan (1990) 88 Sask. R. 182 (Q.B.)., a Saskatchewan court decision, the claimant was an MLA and participated in the Public Employee’s Disability Income Plan as a condition of her employment. The province of Saskatchewan was the sponsor of the plan. The 32 year-old MLA claimant suffered from chronic posterior joint dysfunction of the lower lumbar spine. She also suffered from chronic pain in her lower back, radiating at times down the legs and up to the shoulders.
The Saskatchewan Court of Queen’s Bench determined and clarified what is meant by the definition of totally disability:
Total Disability means that “the participating employee is unable to work at any reasonable occupation as a result disease or accidental bodily injury.”
Reasonable occupation is defined as “any gainful activity for which the Employee is, or may reasonably become, fitted by reason of education, training or experience but excludes any activity that is part of an Approved Rehabilitation Programme.“
The Court went on to state that:
An occupation is not any reasonable occupation for which the insured is fitted by experience, training or education unless that occupation is reasonably comparable to the occupation previously performed by the insured. (emphasis added.)
The court found that there must be some comparison in terms of responsibility, duties, and remuneration to what the claimant has done in the past. This doesn’t mean that potential jobs have to contain the same pay and responsibilities as the previous occupations of the claimant, but rather these components must be similar. As the Court stated:
In summary, the plaintiff will be considered under the Plan to be totally disabled if she is unable to substantially perform any occupation that is:
- neither inconsequential or trivial; and
- similar in nature and remuneration to her former occupation; or
- similar in remuneration to her former occupation and of such a nature that she can become capable of performing it substantially within a reasonable time and with a reasonable effort and expense.
The Alberta decision of Flewwelling v. Blue Cross Life Insurance Co. of Canada, 1999 ABQB 258, provides a further comment on the salary requirement of a “reasonable occupation”:
ANY OCCUPATION
[84] The policy provides that “after the elimination period plus 24 months total disability” means that the employee is unable to perform any occupation for which he is reasonably fitted or could so become by training, education or experience.(ex 34, 82) There is little dispute that “any occupation” does not really mean any occupation. The case law seems to suggest that it must be commensurate with the insured’s former occupation in status and remuneration. A rough guideline is that the salary must be at least 2/3 of the previous salary. (Johnston v. Alberta School Employee Benefit Plan 1995 CanLII 9112 (AB Q.B.), (1995) 31 Alta. L.R. (3d) 116; Stutt v. Alberta (Provincial Treasurer) (1988) 34 C.C.L.I. 78; Bacon v. Saskatchewan reflex, (1990) 88 Sask. R. 182) (emphasis added)
Each case has to be reviewed on its merits and in light of the duties and responsibilities and salary of the job held immediately prior to the disability.
If you are unable to do or be trained to do a somewhat similar job, you may have a valid claim for disability benefits beyond the definition change date notwithstanding the opinion of the disability insurance company.
Call our office to have an experienced disability insurance lawyer review your case to determine whether you have a disability insurance claim worth pursuing. If so, we can ensure that the insurance company pays what it is legally and contractually obligated to pay.
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