Many individuals are hesitant to return to work when on disability because they believe that this will negatively impact their claim. However, returning to work while on disability in certain situations may actually help to support your claim. This being said, if you are on disability and return to work with no limitations, this will not help your claim.
Situations where returning to work on disability may help your claim are when you return to work but do so with limitations. Limitations may include:
- Suffering pain while at work;
- Being unable to fulfill all of your job duties; and
- Ultimately being let go after your return.
No matter how you return to work, whether you have taken on a new job, whether you work from home, or whether you returned to work on the advice of your doctor, if you continue to experience limitations, this return to work will not necessarily be detrimental for your disability claim. However, limitations are not just mere discomfort at a job, as individuals are expected to put up with a “reasonable amount of discomfort” in a job.
What if I Returned to Work for an Extended Period of Time?
Returning to work for an extended period of time does not necessarily mean that you should not be considered totally disabled from your occupation. In fact, in an Ontario case called Foden v Co-Operative Insurance Association, an individual continued to be found totally disabled despite a six month return to work. In this case, the person in question returned out of a desire to prove she was not disabled as well as due to financial need. Ultimately, however, she was unable to perform her work duties and was found to be totally disabled.
The court in Foden recognized three important points:
- Even an extended return to work does not automatically disentitle people to a total disability claim;
- It is important not to discourage people from attempting to return to work for fear that this will be held against them; and
- “There is no better evidence of incapacity to perform a task than the failure of an honest and sustained attempt to do it.”
What this case illustrates is that a return to work with limitations—no matter whether this return was for a long or short time—does not automatically show that someone is not totally disabled.
If you have returned to work on disability for a long time, consider if you are experiencing pain at work or whether you are able to fulfill your job duties. If you answer these negatively, it is likely that your return to work will not negatively impact your claim.
What If I Returned to Work Several Times
Making several attempts to return to work can also help to support a claim of total disability. This is especially the case where you have made attempts to return to work when you are clearly either suffering from a great deal of pain or unable to perform the essential duties of your job due to disability.
Courts have recognized that individuals should not be penalized for attempts to work, especially when those attempts were ultimately unsuccessful.
What If I was Working from Home
If you are working from home and you are still facing limitations there, this can also be used in support of a total disability claim.
For example, in a British Columbia case called Nicholas v Metropolitan Life Insurance Co of Canada, 2003 BCSC 506, a woman was found to be totally disabled despite the fact that she had attempted to both operate a bed and breakfast as well as managing a clothing business from her house. These attempts at working ultimately failed as she was experiencing too much pain and fatigue from the activities required.
What if I Started a New Job?
If you started a new job on disability, perhaps one with lighter duties, this does not necessarily mean that you are not still considered totally disabled. If you still experience significant limitations while at your new job, you may still be considered totally disabled. A return to work, whether to an old or new job, does not automatically mean a rejection of total disability.
What if I Returned to Work on the Recommendation of a Doctor?
Even if your return to work was on the recommendation of your doctor, this does not necessarily refute a claim of total disability. Courts have recognized that when understanding total disability, they should take into account your employability in the real world, not just what a doctor has reported of your capabilities over several visits.
What If Started a New Job Making Less than Before
But when you start a new job, you may want to be careful. If you were totally disabled from your previous job, but this new job has lighter duties which means you can perform it without limitations, you may have some difficulties with your claim. Working in a job where you are not suffering from limitations, even if you might be making less than in your previous job, can provide evidence against a claim of total disability.
How Can NOVA Injury Help?
At NOVA Injury Law we will act on your behalf to advocate for you in your disability claim.
The whole idea behind a disability claim is to ensure you are provided compensation for your disability – and this is a wide-ranging task with unique facts in each case. To learn more about NOVA Injury Law’s approach to protecting disability claims, contact us now to book your free Case Review. During the free Case Review process, we will give you our honest opinion about your case, how much your disability claim might be worth, and what you should consider as your next steps.
If you are in need of legal advice or representation for your disability claim in Halifax, Nova Scotia, or anywhere in Atlantic Canada, our long-term disability lawyers are here to help. Contact us today and tell us more about your claim – we are here to help!