Long Term Disability Insurance and Pre-existing Conditions

A pre-existing medical condition is one which you experienced prior to becoming covered by insurance. If you are covered by a group long term disability policy, there are two key questions an insurer will consider to determine if your disability claim is excluded by the pre-existing condition clause.

Will the pre-existing condition exclusion impact your disability claim?

1. When did you become disabled?

If you leave work due to a disability within a specified period of time set out in the policy, the insurance company will investigate your health history before you became covered for benefits. For example, if you become covered by the policy on June 10, 2023, your policy may specify that if you become disabled within one year after that time, it falls in the pre-existing condition exclusion period. If you left work due to disability on March 1, 2024, the insurer will conduct a pre-existing condition investigation. The pre-existing exclusion period may run for a period of one year or even as long as two years after you become insured.

2. Is the disability related to a pre-existing condition?

A pre-existing condition is one for which you received medical care or treatment before you became insured. If the condition causing your disability arose from an injury or illness which you were being treated for at the time you became insured, the insurer may be entitled to deny your disability claim and avoid payment. Your specific policy will define when the treatment had to occur in order for the condition to be excluded. For instance, if you were not treated for the condition in the three months before you became covered, your policy may mean that your condition is not pre-existing and is therefore payable.

Most group insurance long term disability policies have pre-existing condition exclusion clauses. You must have a copy of the actual policy provision in order to determine whether the insurer has considered the proper contract language in making its decision.

Examples of Pre-existing Condition Clauses:

Example One:

“No benefits are payable for any Disability directly or indirectly related to:

A Pre-Existing Condition which causes Disability within the first 12 months of insurance under this Benefit. A Pre-Existing Condition is any injury or illness (whether diagnosed or not) for which an Employee was treated or attended by a Physician, or for which Drugs were prescribed within 90 days prior to the date the Employee’s insurance under this Benefit became effective.

Key points:

• The provision tries to exclude disabilities that are not just directly related to the pre-existing condition but also those which are indirectly related.
• The pre-existing condition exclusion investigation will occur if the disability occurs within the first 12 months of coverage.
• The insurer will look at the medical history in 90 day period before coverage started.
• The policy seeks to exclude a disability which is related to a condition which may have been undiagnosed at the time of coverage.

Example Two:

“Payment is not made for

A Total Disability due to or resulting directly or indirectly from an Illness which existed on or before the commencement date of the Employee’s insurance unless

1. The Employee has been insured under this provision for a continuous period of not less than 13 weeks during which he/she:
   1. Has not received medical care, treatment, prescription medicines or diagnostic procedures for such Illness from a Doctor or from appropriately qualified personnel acting under the direction of a Doctor, and
   2. Has been continuously Actively At Work (for the purposes of this clause, the Insurer will disregard absences of a total of not more than 2 days during the same 13 week period), or
2. The total Disability commenced after the Employee has been insured under this policy for a period of at least 12 months.”

Key points:

• Both indirect and directly related conditions are excluded by this language..
• If disability occurs within 12 months after coverage begins, a pre-existing condition investigation will occur.
• If there is any continuous 13 week period from the date of coverage up until the date of disability with no treatment, the clause does not apply.
• This clause is often poorly applied and misunderstood by the insurance decision maker.
• The insurer will request attendance records to determine absences during the pre-existing condition period.

Example Three:

“No benefits will be paid for:

Disability arising from a disease or injury for which the person obtained medical care before he became insured. Medical care is considered to be obtained when he consults a doctor, uses medication on the advice of a doctor, or receives other medical services or supplies.

This exclusion does not apply if disability starts after:

• He has been continuously insured for 1 year; or
• He has not had medical care for the disease or injury for a continuous period of 90 days ending on or after the date his insurance took effect.”

Key points:

• This clause targets any disability which occurred within one year after becoming covered for benefits.
• If there is any continuous 90 day period between the date coverage started and the date of disability, the clause does not apply.

Conclusion:

These provisions exclude payment for conditions which existed at the time a person became covered by the policy if the disability began shortly after coverage started. The clauses are very specific and technical. They are fact-specific and require a careful examination of the medical evidence at the time of coverage, throughout the pre-existing condition period and at the time of disability. If your claim has been denied as a pre-existing condition, the experienced disability lawyers at Burn Tucker Lachaine PC will analyze the medical evidence, the relevant dates and the policy language to advise you about disputing the denial. Your disability coverage is valuable – don’t walk away from your claim without getting knowledgeable advice.

For advice please text 613-777-0992 or contact us through our website to schedule a meeting with one of our lawyers.  We provide a free consultation, in French or English, to ensure that your rights are protected.   In most cases, we can offer to represent you on a contingency fee basis.  This means that you do not pay legal fees unless you win or achieve a settlement on your case.