Using redemption arc to assess invisible injuries is ‘archaic’

By Tony Poland, LegalMatters Staff • Insurance providers should be taking a more individualized approach to assessing invisible injury disability claims in order “to fulfill their duty of good faith,” says Ontario disability insurance lawyer Courtney Mulqueen.

“The expectation is that with proper treatment a person who has suffered an injury or illness is likely to recover at a steady rate, eventually returning to their pre-illness level of functioning so they can resume their normal activities, including work,” says Mulqueen, principal lawyer of Mulqueen Disability Law Professional Corporation. “Unfortunately, that is not the case for many people suffering from invisible disabilities. These conditions are often undiagnosed or require significant testing and investigation to reach a diagnosis. 

“Even then these people are either untreated or untreatable. The focus of their treatment may be limited to managing symptoms rather than improving functioning or curing their illness.”

There may be no definitive diagnosis or treatment that will lead to a full recovery, she tells LegalMattersCanada.ca. 

‘People are being denied their rightful benefits’

“Meanwhile, these people are being denied their rightful benefits because insurers are using a redemption arc to assess recovery that may apply to most injuries or illnesses but not to theirs,” Mulqueen says.

The redemption arc is a storytelling device for a type of character development in which a person atones for their flaws and transforms from bad to good. 

“The term can also apply to the model adopted by insurance companies that assumes that most disabilities will follow a similar trajectory – illness, treatment, recovery,” Mulqueen says. “However, when it comes to invisible disabilities, there is no redemption arc or path from feeling bad to feeling good.”

She says she represents clients who suffer invisible conditions such as chronic fatigue, chronic pain, traumatic brain injury, mental illness, post-traumatic stress disorder and other conditions that do not typically follow the typical cycle of “get sick, get treatment, get better.”

“Rather, these people experience good and bad days, good and bad moments within a day, or even good and bad weeks and months,” Mulqueen says.

Those with invisible disabilities find it difficult to prove they are legitimately suffering, leading to “misunderstandings, rejection by friends, family and health-care providers,” according to the Invisible Disabilities Association.

People who are struggling with physical or mental issues that cannot be easily quantified may also feel stigmatized, says Mulqueen. As well, coming to terms with having a disability and not being able to function at the same level as before can be difficult, she says.

Deeply personal process

According to Prevention.com “realizing that a condition is technically a disability and embracing it as such can be a complicated and deeply personal process.”

“Our society penalizes you for being disabled,” writer and disability activist Imani Barbarin told the online journal. “When your ability to live, find a home, food, and resources is tied directly to your productivity, identifying as disabled is not something that people want to do.”

Issues arise when insurance companies employ their usual claims assessment tools for invisible disabilities that seem to follow the redemption arc model, Mulqueen says.  

“The majority of my clients suffer invisible disabilities and chronic illnesses and they present a challenge for insurance company processes and procedures because they don’t follow that arc,” she explains. “The severity and presentation of their disability can often change. This leads insurers to question my clients’ credibility and motivation to return to work.”

Mulqueen says disability claimants can face an uphill battle for benefits. Insurers may apply standard medical recovery timelines to determine when that person should be well enough to return to work and then terminate benefits when that date arrives, she says.

The insurance company may demand a definitive diagnosis insisting that without one, they cannot assess if appropriate treatment is being received, Mulqueen says.  

If a claimant finds traditional treatments are ineffective and tries alternative therapies, the insurance companies may deny the claim on the basis that the claimant didn’t receive care from a conventional doctor, she says.

Reach the wrong conclusion

Insurance companies can conduct an investigation but then draw the wrong conclusions, Mulqueen says.

“Often the questions being asked on the telephone and on standard forms leave little room or opportunity to explain temporary improvements and variations in activity levels, which may result in the insurance company concluding that the person is more functional on a consistent basis than they actually are,” she says. “The insurer may also use surveillance to assess functionality and draw conclusions about a person’s functionality based on a small window of time that does not reflect the person’s actual consistent level of function. 

“Insurance companies may assume that because a person with an invisible condition may have a few good moments, days, or even months, they are following the typical redemption arc associated with many other illnesses,” Mulqueen adds.

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She warns that insurers who apply the standard claims adjudication processes to the assessment of invisible conditions could find themselves defending their actions in court. 

“To fulfill their duty of good faith, the insurer should consider that physiotherapy or exercise will not always result in functional improvement for a person with Fibromyalgia, just as medication might not help a person struggling with symptoms of PTSD,” Mulqueen says. “And alternative treatments might be the only treatment option for someone who has tried every other conventional treatment for conditions such as chronic fatigue, Lyme Disease or post-COVID conditions.”  

Insurers should consider that improvements are relative and often temporary, meaning claimants may still be eligible for short-term and long-term disability (LTD) benefits even with intervening periods of functionality, she says.

Advise claimants about other options

Mulqueen also suggests that insurance providers advise claimants of other possible benefits in their policies that could assist them in “testing the waters when it comes to returning to work during periods when they are well without jeopardizing their ongoing entitlement to disability.” 

“Some individual and group disability policies permit someone to return to work on a limited basis and still receive disability benefits,” she says. “There may be terms that allow for a ‘top-up’ of benefits if a person is able to do their job part-time. The policy could also include benefits for retraining and rehabilitation.

“Also, there may be provisions that allow a person to return to work for a set period. If they are unable to continue, their LTD claim will pick up where it left off,” Mulqueen adds. 

Demonstrate their motivation and commitment

“If they are unsuccessful and their condition no longer allows them to carry on, they will have at least demonstrated not only their motivation and commitment to improving their functioning but also that the severity and variability of their disability prevent them from working on a consistent basis.” 

Unfortunately, she says she has found her clients are not often aware of these options. 

“Instead, insurers will deny or terminate claims before offering or advising claimants of these benefits,” Mulqueen says.

In the end, applying the same expectations on every illness or injury can result in a claimant not receiving the benefits they deserve, she says.

“The redemption arc applied to invisible disabilities is archaic,” Mulqueen says. “Insurers should find a better way to assess these LTD claims that does not discriminate against these claimants based on the nature of their disabilities.”