People with invisible disabilities deserve trust, understanding

By Tony Poland, LegalMatters Staff • As claims for invisible conditions such as long-COVID and mental health issues continue to rise, insurers need to start giving people and their care providers the benefit of the doubt when it comes to assessing their cases, says York Region disability insurance lawyer Courtney Mulqueen.

Mulqueen, principal lawyer and CEO, Mulqueen Disability Law Professional Corporation, says insurance providers should rethink their procedures when evaluating claims for “invisible disabilities.”

“The investigative processes used can make claimants feel as though they are doing something wrong when all they want is to get the help they deserve so they can move forward with their lives,” she tells LegalMattersCanada.ca. “These are people struggling with issues that can be difficult to quantify. But make no mistake, they are suffering and the stress of dealing with a loss of benefits can exacerbate their condition.

‘People do not choose to be disabled’

“People do not choose to be disabled and they certainly do not choose to be disabled from conditions that are difficult to prove,” Mulqueen adds. “For the vast majority of people, working and earning an income is far better financially and emotionally than staying at home, going to medical appointments and relying on an insurance company to pay only a percentage of their salary.” 

The United Way of Greater Toronto states that while there are no statistics that show exactly how many Canadians have invisible disabilities, a 2012 Statistics Canada survey found 3.8 million aged 15 or older said a disability limited their daily lives.

The United Way also reports that in any given year, 20 per cent of Canadians will experience a mental health issue.

Mulqueen says invisible or hidden disabilities can cover a multitude of issues, including long-haul COVID that has symptoms that can disappear and reappear without having another diagnosis to explain them. One of the biggest problems with these issues is that there is seldom a diagnostic test to prove a person is functionally unable to work.

Accusations of faking an illness or being lazy

The Invisible Disabilities Association (IDA) states that someone with these conditions often has a difficult time proving they are legitimately suffering. The disbelief often encountered “can lead to misunderstandings, rejection by friends, family and health care providers” and it is not uncommon for the person to be accused of faking an illness or of being lazy.

The IDA, which is presenting Invisible Disabilities Week, Oct. 16 to 22, states that just because you cannot see an issue, that does not mean that it is not real.

Mulqueen says applying for long-term disability (LTD) benefits for an invisible condition is difficult but even more so when struggling to prove that disability.  

“Complications arise when insurance companies are faced with disability claims for invisible medical conditions such as chronic fatigue, chronic pain, long-COVID and all types of mental health conditions,” she says. “Since there may be no specific tests that can prove the nature and severity of these types of conditions, insurers will often be more critical of what treatment providers say. That is because their medical opinions are often based solely on symptoms reported by the patient.

“Normally, what the person reports will be consistent with what they have reported to their doctors,” Mulqueen adds. “This should be enough for insurance companies to approve these claims. However, in many instances, that is not the case.”

Mandate is to provide benefits to those who pay their premiums

She concedes that insurance providers can be placed in a difficult position when assessing invisible conditions. They have a mandate to provide benefits to those who have paid their premiums in the event they are unable to work due to any type of illness or injury, says Mulqueen. However, she says insurers also have to keep an eye on the bottom line, which means denying claims.

She says while she understands the need for insurance providers to be thorough, she questions some tactics they use during an investigation.

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“In addition to seeking information from treatment providers, they will also ask the person to explain why they are unable to work and more specifically what symptoms prevent them from working,” says Mulqueen. “When assessing mental health and other invisible type conditions, insurers will often look for other information that will provide evidence of a person’s level of functioning.” 

Claimants may have to answer questions about their “activities of daily living,” she says.

“The insurance company may even conduct surveillance to determine how a person is functioning out in the world. If the insurer is able to find evidence that the person’s functioning is at a level that would allow them to work, they may decide to deny disability benefits,” says Mulqueen. “There are serious problems with using this type of information to assess disability claims, particularly for mental health claims.” 

For instance, it can be “very easy for insurers to misconstrue what a person reports as their activities,” she says.  

‘Level of functionality can be variable from day to day’

“Someone may be able to cook and clean one day and then be bedridden for the rest of the week,” Mulqueen explains. “For many disabled people, their level of functionality can be variable from day to day, and even hour to hour. 

“As well, people are asked to provide written answers to questions on an insurance form or in telephone calls that might not allow them the opportunity to explain the variable nature of their activity level.” 

She also questions the use of surveillance, saying it has “no real probative value.”

“Surveillance conducted by insurers may only capture a brief moment in a person’s day or week and not provide a full picture of a person’s ability to function at work on a consistent and reliable basis,” says Mulqueen. “It is also troubling because a claimant suffering from a mental health issue may feel even more anxious to discover they are being watched. It can add to their trauma.”

Insurance investigators should be more trusting

She says while she doesn’t expect insurers to take everything a claimant says at face value, investigators should be more trusting.

“To assess disability and eligibility for LTD benefits under a group or private insurance plan, insurance companies should be relying predominantly on medical records and reports from the person’s doctors and specialists,” Mulqueen says.

For those applying for LTD claims or appealing a termination or denial of benefits for an invisible condition, MK Disability Lawyers offer these Three Most Important Tips. 

• Always focus your answers and those of your doctors to questions on forms and in telephone calls on what you can and cannot do, as a result of your symptoms.
• Treatment is critical in a claim for invisible conditions. When all you have to rely on is what you report to your doctors, you need another means to support your claim and treatment is one of the best ways to prove you are unable to do your job. Follow doctor’s orders, such as filling prescriptions and attending specialists’ and therapists’ appointments.
• When completing forms or speaking with the insurance company representative assessing your claim, be open and honest.  Avoid being overly optimistic about your return to work and don’t overstate your actual functional abilities.

“Long-term disability claims can be extremely difficult to prove, especially if you are dealing with an invisible condition. But you don’t have to face the insurance company alone,” says Mulqueen. “It is always in your best interest to seek legal advice.”