If you want do your own appeal
Note: This is general advice and each person’s situation is different. Not solicitor client relationship
- Get your doctor to do a comprehensive typed medical legal report. The doctor gets paid approximately $30.00 per visit from Alberta Health, so he or she will not spend adequate time doing a report unless you / or a lawyer / pays them for their time. I find the cost of a comprehensive medical legal report from a family doctor to average from $300.00 to $600.00. Each doctor will charge a different amount based on the time it takes to write the report. Some doctors will require payment in advance. A medical report from a specialist may cost up to $2,000.00.
- The doctor’s report should contain:
- the medical diagnosis
- the objective findings, if any including a list of any diagnostic testing and the results.
- your subjective complaints
- a list of functional impairments – or a list of what you can and cannot do from a functional perspective. Functional limitations are defined as limitations in an individual’s functioning that hinder the ability to perform tasks or activities. These must be listed.
- a statement that the doctor has reviewed your job description and that you cannot do your occupation because of your restrictions and limitations.
- a summary of the medical history, your treatment, your response to treatment and your current condition,
- no prognosis is required, but a summary of future treatment plans is generally of assistance.
- The doctor does not have to comment on whether you are “totally disabled” as that is a vague definition and the medical definition and legal definition are different. Medically, if you can still feed yourself and shower and put your clothes on, doctors will not consider you medically disabled. But legally the definition of “totally disabled” depends on the insurance policy in question.
- The doctor must remember that his conclusion is not as relevant as the reasons for his conclusion. A simple statement that you are disabled, or cannot work, is not legally persuasive – unless it is backed with the reasons for his opinion. For the reasoning to be valid, your doctor must consider whether you can do your own occupation and why.
- The “Attending Physician’s Supplementary Statement” which is filled in by the doctor is not persuasive. It is done on a form supplied by the insurance company, which asks vague questions with no room for elaboration. The doctor also charges only a nominal fee for completion of this type of report and because of the time pressure on doctors, most doctors do not turn their minds to the ultimate purpose of the questionnaire.
- There is a difference between limitations and restrictions. I find this is often misunderstood. One definition I have found is that – Restrictions are those mental and/or physical tasks and activities that you may NEVER do – they will make your condition worse and are contraindicated; limitations are those mental and/or physical tasks that are not contraindicated (meaning that they will not medically make your condition worse) but that you are not physically or mentally able to do. For example – a paraplegic may not have any restrictions on doing a job where he has to stand, but he has a limitation in that he cannot stand. It is a limitation and not a restriction. But if you are a heart patient, you may have restrictions – things you should not do – even though you could physically still do them. Someone with a severe stroke may have a limitation in not being able to speak clearly, but it this is not a restriction. Trying to speak will not make the stroke worse – so it is not a restriction, but a limitation.]
- Offer to pay your doctor in advance for the cost of the medical legal report.
- If your supervisor is supportive, it is also helpful to get a written statement from him describing your job and why you can or cannot do it. His observations of your abilities, your performance on the job, the fact you were a valued employee and were with the company for many years, and that he supports your claim for disability benefits is helpful.
- Also do your own letter of appeal, enclosing the job description, the medial legal report, and the functional capacity form, and your own letter of appeal and send it in to the insurance company. Remember your audience for your letters is ultimately a court or independent person reviewing the insurance company conduct so you have to write your story down so that it is self contained. Telephone calls are never recorded word for word and the insurance company file will never have everything you said in their records. The insurance company will only have a summary of what their representative typed out as a summary.
- General advice – Your telephone calls are meaningless. The record in the insurance companies file will be what you and your doctors sent the insurance company.
- Keep your own records. Keep copies of what you send the insurance company. They have been known to misplace or lose records and your file is as important as the insurance company file. So keep copies of everything you send the insurance company. If you do this by email, print out hard copies of each email to and from the insurance company and if you are able, keep your records in chronological order. If you fax documents, keep the fax confirmation and staple it to your cover letter to the insurance company.
- The definition of disability in your insurance policy (note- each policy is different) is that you are disabled for the first two years if you are unable to perform the substantial duties of your own occupation. After two years, the definition in your particular policy is if you are unable to perform the duties of any occupation for which you are or may become qualified by further training, education or experience. Further the test is that you must not be able to earn 60% of your pre disability gross monthly income. This usually means 60% of your base salary not taking into account bonuses or overtime, although this varies from policy to policy. I do not have your policy and cannot comment on whether pre-disability gross income includes any overtime or bonuses.
- When to hire a lawyer? No legislation obligates the insurance company to advise you of the limitation period in your claim. The limitation period is defined as the period of time within which a formal claim must be filed at the court house, initiating a law suit against the insurance company. If a claim is not formally filed at the appropriate court house within this limitation period, your claim is automatically extinguished. It is null and void. You cannot continue any lawsuit against the insurance company. The limitation period in law is a specified period during which, by statute, an action may be brought. After that period, a claim cannot be brought.
Bayda Disability Law Firm
serving Alberta & Saskatchewan