Disability Standards in Ontario: Own Occupation vs. Any Occupation

Insurance disability policies often use highly technical and/or confusing terminologies and provisions, which may permit for different legal interpretations. It is important that you hire an experienced legal team to help you understand your LTD policy and ensure that you get all the benefits that are due to you. You should also comb through the policy when getting into the plan to ensure you get what best works for you. Consider hiring long term disability lawyers in Toronto to help you go through the fine print.

As an example, it is important that you know the difference between “own occupation” or “any occupation”. These are the two standards by which insurance companies measure disability. So, what is the difference between the two?

Own Occupation Standard

People who have been denied benefits under the “own occupation” standard may often end up in court over disputes. This is important for you because it means the Courts have addressed several highly technical distinctions in the definition of the standard and have settled on a series of principles that will help you understand what the standard is all about.

“Own occupation” means you are not able to perform essential duties, not minor tasks. As an example, if you able to go to work but you are not able to do the specific tasks for which you were employed, you qualify under the standard.

Under the “own occupation” standard, your whole job has to be compromised by the injury, not each individual responsibility. The standard does not require that your injuries render you totally helpless but is one of reasonableness. The question to ask is, “would any reasonable person in your circumstances desist from work?”

Note that your “occupation” does not necessarily mean your “job”. The question doesn’t concern your specific job with your current employer, but your class of occupation. This could be a different job of the same general class as your current job with a different employer.

Any Occupation Standard

“Any occupation” disability takes your unique qualifications and characteristics into consideration. “Any” occupation does not literally mean “any”, but rather an occupation for which you are reasonably suited given your education, training, and experience.

Note that “own occupation” may transition to “any occupation” disability after sometime or or possibly 2 years after the onset of your disability. After the expiration of this period, you have to prove to your insurer that you are incapable of performing “any occupation”.

It may be necessary that you undergo training. Note that you do not qualify under “any occupation” if there is an occupation that you can perform reasonably well even without formal qualification. The question is, “would obtaining such qualifications require substantial retraining?”

As an example, if you were a welder in a car manufacturing company, you would qualify for “own occupation” benefits if you injured one hand. However, your employer may have opportunities with accommodations in the plant that can be performed using one hand, in which case you may not qualify for “any occupation”.

However, note that being capable of returning to work does not mean you automatically lose your benefits. Courts in Canada have held that your employer cannot make you return to work if doing so means you would perform your duties, but with debilitating pain or discomfort.

If you have sustained an accident that prevents you from return to work, it is imperative that you consult an experienced accident and disability lawyer at Grillo Law.

Own Occupation vs. Any Occupation: How the Standards Fit Together

Own occupation and any occupation standards are legal concepts that define one’s entitlement to longer term disability benefits.

In practical terms if you’re disabled and have just qualified for a disability pension, in due course, you may find yourself having to requalify even if there has been no improvement in your condition, based on whether your insurer believes you meet the legal definitions under your policy to qualify as being disabled.

You’ll find the definitions of own and any occupation in your own policy document. They differ subtly from one policy to the next and based on one’s medical evidence and the facts surrounding their claim.

This is why it is a good idea to consult an experienced disability lawyer when you first apply for disability benefits. Your lawyer can explain from the outset what you can expect and what evidence may be required to substantiate your claim. The two concepts are further outlined below.

Own Occupation

• It’s the essential tasks that matter. If you are unable to perform the essential tasks you are classified as disabled
• It is the sum of all the tasks in your occupation that matter. If you can’t do them all together, you’re disabled
• The courts apply a standard of reasonableness
• Job and occupation are not interchangeable.

Any Occupation

• Any occupation in this instance means the occupation for which you are trained
• If there is an occupation that suits you but for which you are not qualified, you may have to undergo training
• Even if you work you may qualify for benefits.

What is Own Occupation Test?

Most disability insurance policies set out two tests for long-term disability. These are own occupation and any occupation. Typically, the insurance will cover own disability for the first 24 months after disablement. Then any occupation clicks in.

This means that for the first 24 months, you can claim disability benefits even if you could return to work in another occupation.

Own occupation is the occupation which you perform on a regular basis. Don’t confuse the term “occupation” with “job”. Occupation refers to what you do for a living. A job, on the other hand, refers to the place that you work.

To claim benefits under “own occupation” you need only prove that you cannot carry out all the duties required from you in your regular occupation.

The wording on the policies may differ with respect to the definition of the duties. Different policies refer to these as all “essential duties”, “important duties” or “material duties” or even a percentage of duties. You can usually satisfy the requirements of the policy even if you are unable to carry out one material duty as long as it a crucial to the performance of your duties.

The own occupation test could be defined as the duties which are required for the performance of your own occupation, and which cannot be overlooked or changed. Before seeking disability benefits you will have to consider whether duties may be modified to accommodate your condition.

What is Any Occupation Test?

When a designated period covered by own occupation has run its course, you’ll have to prove to your assurer that you qualify for any occupation disability grant. These factors apply;

• You don’t have to prove that you are incapable of carrying out any occupation under the sun. Rather you have to prove that you aren’t able to carry out the tasks in an occupation to which you are well suited due to your experience, skills and training.
• You may require some training. If there is an occupation that is reasonably well suited to your abilities but you are not qualified to do the job, you may have to undergo training. The question under consideration here would be how much training you would need.
• You may return to work. Returning to work does not necessarily disqualify you from getting a disability allowance. Courts have in the past found that people who return to work for a trial period or who have tried to return to work and failed could still qualify. Similarly, people who continue to work despite unbearable pain may still receive benefits.

If you are to continue to claim benefits after the designated waiting period (likely 24-months) has passed, you’ll have to prove that you are totally disabled. This means that you are incapable of doing the main functions of any occupation for which you are suited by way of education and training or for which you could receive reasonable training to qualify.

Understanding Your Options When It Comes to Disability Benefits

The ‘Any Occupation’ and ‘Own Occupation’ standards apply in the unique context of group and private disability insurance policies. These policy terms create barriers for recovery of disability income and put in place medical-legal tests to meet to obtain claim approval. There may be alternatives to such insurance policies for people who either want to be sure they are fully protected in case of a long fight with an insurer over benefits or people who are not covered.

Some of the common collateral benefits and alternatives in Ontario include the disability benefits under the Canada Pension Plan or employment and income support offered by the Ontario Disability Support Program. These programs have a unique set of eligibility requirements. Just like obtaining benefits under private insurance policies, proving that you are eligible for these programs can be a challenging process.

Suppose you have become unable to work due to a mental health or physical health condition. What should you do? It is in your best interest to contact an experienced long-term disability lawyer for legal advice, no matter the type of benefits you intend to be eligible for. Skilled disability lawyers have a wealth of knowledge in handling such matters and can help you avoid potential pitfalls that could derail your case.

Whether you plan to apply under a private insurance policy, the Ontario Disability Support Program (ODSP), or the Canada Pension Plan (CPP), an experienced lawyer can help you gather the right pieces of evidence and present a strong case that you are indeed entitled to benefits.

Please schedule an appointment with one of our lawyers for an in-depth consultation about how we can help you get the disability benefits you rightfully deserve.