Are you Able to Work? Or… Are you Able to Perform Sustained Gainful Employment?

Woman in wheelchair with laptop

Have you had your disability insurer ask a healthcare provider whether you are able to work? That simple question is often critical, yet misleading. Your disability insurer should be asking your healthcare provider whether you are “able to perform sustained gainful employment”. The answer to that question often meaningfully sheds light on the significance of your disability and your entitlement to disability benefits.

Insurers are supposed to use a “real world” analysis when it comes to assessing your entitlement to disability benefits.

The “real world” analysis was discussed in Villani v. Canada, 2001 FCA 248 (CanLII). Villani dealt with whether a claimant was entitled to the CPP disability pension; however, the case does provide guidance for LTD claims.

This “real world” approach requires it to determine whether an applicant, in the circumstances of his or her background and medical condition, is employable, i.e., capable regularly of pursuing any substantially gainful occupation. Employability is not to be assessed in the abstract, but rather in light of “all of the circumstances.” The circumstances fall into two categories:

(a) The claimant’s “background.” Matters such as “age, education level, language proficiency and past work and life experience” are relevant here (Villani, supra at paragraph 38).

(b) The claimant’s “medical condition.” This is a broad inquiry, requiring that the claimant’s condition be assessed in its totality. All of the possible impairments of the claimant that affect employability are to be considered, not just the biggest impairments or the main impairment. The approach of assessing the claimant’s condition in its totality is consistent with section 68(1) of the Regulations, which requires claimants to submit highly particular information concerning “any physical or mental disability,” not just what the claimant might believe is the dominant impairment.

When it comes to LTD disability claims I want my client’s healthcare providers to address whether my client can perform sustained gainful employment. By asking this question, healthcare providers are invited to provide a more fulsome and accurate answer as to my client’s employability. I do not ask healthcare providers whether my client can work! Most people can “work” for ½ a day or even a day. The real question is whether they can work, day in and day out, and without prolonged absences. Would someone actually employ them in the “real world” considering their injuries and impairment? That is the real question!

If your insurer has denied your claim for disability benefits, please call me so that we can discuss how to prosecute your claim and obtain the evidence we need to demonstrate your entitlement to benefits.



About the Author

david hayward - Burlington Lawyer


David’s practice includes representing injured people in various areas including automobile accidents, Mediations/Arbitrations at the Financial Services Commission of Ontario, slip-and-fall accidents, LTD claims, CPP, and ODSP disability claims.