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Will Returning to Work Hurt my Disability Claim?

Woman working at a laptop

As a lawyer who represents disabled people, a question I am often asked by clients is, ‘Will returning to work hurt my claim?” The answer is almost always, “No”. I do emphasize to them, however, that engaging in a return-to-work trial is an important decision, and they should seek input from their healthcare providers. Let me provide a more fulsome answer.

It is my practice to file a lawsuit with the court shortly after my client’s claim for disability benefits is denied by the insurer. Over years of practice, I have learned that the insurers’ “appeal” process rarely provides a satisfactory result. The “appeal” is almost always heard by the adjuster who denied the claim in the first place. That is why I like to start the lawsuit as soon as possible. I am not against having discussions with the insurance company regarding resolution of the claim; however, I prefer to engage in those discussions as part of the litigation process so that my client’s matter is moving towards resolution.

I often have cases where my client suffers months of disability but then, eventually, recovers to the point where a return-to-work trial is being contemplated. Typically, the return-to-work trial involves performing modified duties and working modified hours. The return-to-work trial, furthermore, is, hopefully, carefully crafted after seeking input from the disabled person’s healthcare providers.

There are two usual outcomes of the return-to-work trial; (1) the disabled person fails to return to work despite his/her best efforts to do so; or, (2) the disabled person succeeds in returning to work on a full-time basis.

  1. What happens if the return-to-work trial fails? If the trial fails it will provide me with strong evidence that you are not able to perform your employment. As noted by a Judge in a case that I tried where my client was found to be disabled and entitled to long-term disability benefits: ““There is no better evidence of incapacity to perform a task than the failure of an honest and sustained attempt to do it.”
  2. What happens if the return-to-work trial succeeds? This is always the hoped-for result. A successful return-to-work trial usually happens where the employer, the disabled person, the disabled person’s lawyer, and the disabled person’s healthcare providers work together to formulate a plan taking into account the disabled person’s limitations. If the return-to-work plan succeeds, then the claim for disability benefits will be restricted to the time period when the disabled person was not able to work and should have been receiving disability benefits from his/her insurer. A successful-return-to-work plan, furthermore, strengthens the disabled person’s claim for disability benefits in the disputed time period because it demonstrates that the disabled person is motivated and is putting forth his/her best efforts to recover from the disability.

In summary, a disabled person should not feel apprehensive about the possibility of implementing a return-to-work plan so long as his/her healthcare professionals are in agreement that such a plan is reasonable in the circumstances. Your lawyer should provide input regarding the proposed plan. The purpose of the input would be strengthening the likelihood of a successful return-to-work trial.

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About the Author

david hayward - Burlington Lawyer

DAVID HAYWARD

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.