Mental health-related long-term disability claims are on the rise as the COVID-19 pandemic exacerbates an existing crisis, says Toronto personal injury lawyer Rohan Haté.

According to a recent survey by the Canadian Mental Health Association, mental wellness has plummeted to new lows during the pandemic, with around 41 per cent of adults reporting a decline during the last year. The drop was even more pronounced among those with a pre-existing mental health condition, where 54 percent of respondents felt worse about their psychological state.

Uncertainty exacerbates symptoms

Hate says the trend is reflected in his professional experience, with an increasing number of LTD claims featuring a psychological element.

“COVID is definitely creating issues, and I’ve certainly seen a rise in cases with mental health issues,” he says. “The pandemic is creating a lot of anxiety for everyone, and those who are more susceptible to mental health issues are finding that their problems are exacerbated by the uncertainty that we’re dealing with in Ontario and all over the world.”

Even in non-pandemic times, Hate says, LTD applicants with mental health issues face additional barriers compared to those with physical ailments, thanks to the invisibility of conditions such as depression, anxiety or post-traumatic stress disorder.

“There’s still a bit of a stigma attached,” he explains. “When someone breaks a leg or they’re cut and they bleed, it’s easy for everyone to see. The difficulty with psychological conditions is that insurers — like many people — struggle to see what the problem is.

“Then what happens is they start questioning you earlier about whether you’re able to return to work,” Haté adds.

Conditions attached to benefits

But the practical difficulties of normal life in COVID times have given insurers more ammunition than ever to shoot down claims, according to Haté, who has helped clients deal with threats to cease benefit payments for non-compliance with ongoing treatment requirements

He explains that entitlement to LTD benefits often comes with conditions attached. For those with mental health conditions, this may include regular therapy sessions, but many patients have been unable to see their treatment providers in person for months because of the pandemic.

“It can be hard to get virtual appointments, and some people don’t find it as effective online,” Haté says. “Things can start to snowball if you’re not able to leave the house, and people can get into catch-22 situations where they’re stuck attending unhelpful sessions because they don’t want to lose their LTD benefits.”

In addition, he says insurers are likely to step up the pressure on disability claimants as they approach the two-year anniversary of their departure from work

Critical two-year mark

While each LTD policy differs on the details of coverage, they typically break down into two periods, divided at the two-year mark.

That’s when the test for continued benefit entitlement switches: For the first two years, claimants must show they’re unable to carry out the duties of their own occupation, but after that, policyholders are required to show that they are disabled from performing any type of work if they want to keep collecting LTD payments.

“There are cases where people with psychological issues find they can’t return to any type of work, but they can end up in a big battle with insurers over what they can and can’t do,” Haté says. “With the pandemic, it’s hard to figure out what other types of jobs you can work at, because there are fewer available, especially if you’re worried about leaving your home. Plus, you’ve got the extra layer of difficulty that comes with the anxiety and depression that COVID has made worse.”

He says LTD applicants should always be on the lookout for signs that their insurers may be on the road to denying a claim or terminating existing coverage.

“You’ll often see them start to ask for additional medical information or sending letters suggesting that a missing piece of documentation could have consequences for your claim,” Haté says.

This should be a signal for applicants to think about getting a lawyer involved to avoid an unnecessary interruption of benefits, if they don’t already have representation, he says.