But getting long-term disability benefits under your employer's insurance policy isn't always easy. The process can be long and grueling, and applicants don't always get the results they want. Before you apply for disability benefits under ERISA or another employer-sponsored plan, learn about the law. The application process is crucial to your chances of getting benefits.
The majority of disability insurance plans offered to employees are governed by a federal law called ERISA (the Employee Retirement Income Security Act). If you apply for long-term disability benefits and the insurance company denies your claim, ERISA gives you the right to pursue a lawsuit in federal court.
It's tough to overturn a denial of ERISA disability benefits in court, because the insurance company only needs to show a small amount of evidence to support its decision to deny benefits.
LTD insurance companies are notorious for denying well-supported disability claims by saying your medical evidence is incomplete, your doctors' reports are biased, and a host of other dubious reasons. The problem is most acute at the initial level of an LTD claim, when many insurers reject claims almost automatically.
If you make errors during the application process or don't provide enough support for your claim, your chances of winning will be slim. This means that your initial claim should be as strong as possible to reduce the odds of denial in the first place.
Applying for ERISA long-term disability benefits can be challenging, and making a mistake in the process could jeopardize your ability to obtain benefits. Here are six common mistakes that people make when filing for benefits and how to avoid them.
Mistake #1: Assuming You Have Enough Evidence for Your Claim if Your Employer Says You're Too Sick to Work
The long-term disability insurance company, not your employer, will be paying your long-term disability benefits. Don't assume that your employer's opinion regarding your ability to work is sufficient to qualify for benefits. The insurance company will decide when you meet the legal definition of disability under the terms of its policy.
Mistake #2: Relying Solely on the Advice of Your Human Resources Department
While human resources (HR) personnel at your company might mean well when giving you advice, they're not trained in interpreting insurance policies, and they have no influence over the insurance company for the most part. Remember, your employer and the long-term disability insurance company are separate businesses, and the LTD company doesn't have to follow through on any guarantees made by your employer.
Mistake #3: Documenting Your Disability Claim Using Only the Forms Provided by the Insurance Company
Your doctor usually has to answer certain questions on the insurance company forms. But don't leave it at that—you'll likely need further explanation or information to prove your disability. Sit down with your physician and explain the terms of your disability insurance policy. Request that your doctor complete a report that fully explains how your sickness or medical condition is preventing you from performing the "substantial and material" duties of your occupation. Even if your doctor charges you for such a report, it is well worth the money.
Mistake #4: Participating in Activities That Your Doctor Warned Against
The insurance company will be watching your activities. If you do things your doctor said you shouldn't do, it might look like you're trying to cheat the insurance company. (The insurance company won't know whether you're in pain durnig an acitivty or that it takes you three days to cover from an activity.)
If the insurance company sends you an activity log to complete, that only confirms that you're being watched. Follow your doctor's instructions carefully.
Mistake #5: Using the Insurance Company's Lawyers to Help You File for Social Security Benefits
If you're approved for long-term disability benefits, your insurance company will generally require you to file for Social Security disability benefits. Sometimes the insurance company's lawyers, or an affiliated law firm, will offer to assist you with the application process.
Think twice before using one of these attorneys. There have been cases where an insurance company's lawyers guide applicants toward choosing certain disabilities on their Social Security disability benefit applications, and later those disability selections make it harder for the applicants to prove their long-term disability claims.
Mistake #6: Working With a Lawyer Who Isn't Experienced in ERISA
ERISA, the law that governs employer-paid long-term disability insurance, is a complicated law, and many rules govern the disability application process—from the strict deadlines to what evidence is allowed during an LTD appeal. It's important that the attorney you hire to represent you has knowledge and experience in this area of law.
After you suffer an illness or injury that leaves you unable to work, the last thing you'll probably want to do is deal with your long-term disability company—and for good reason. While the Employee Retirement Income Security Act of 1974 (ERISA) was designed to protect employer-provided benefits including LTD insurance, insurance companies have learned how to use ERISA as a shield to protect them from paying deserving claims.
Here are a few points to keep in mind when dealing with your insurance company or plan administrator.
Before even filing your disability claim, request a copy of the plan documents (the entire policy) and the summary plan description from your HR department, the plan administrator, or the long-term disability insurance company. Under ERISA, you have the right to receive copies of these documents after you send a written request to the plan administrator.
Like all correspondence with your insurer, the request for documents should be sent via certified mail with return-receipt requested. Insurance companies misplace important paperwork all the time; don't let it happen to you.
When you get the application, look at the eligibility requirements, such as:
For more information, see Nolo's article on common LTD policy terms.
There will be numerous deadlines you'll have to meet. Your policy will outline many of these deadlines, and it's important that you write them down—especially your time frame to file an appeal. Failure to meet deadlines can mean you won't get disability benefits.
You need to know what your medical records say about your condition, because this is the same information the insurance company will use to approve or deny your claim. Your medical records must contain objective proof of disability, such as an MRI for back problems or a mental Residual Functional Capacity form filled out by your psychiatrist for depression or bipolar disorder.
When filling out paperwork, remember that the disability application provided by your insurance company might be designed to get you to answer questions in a way that might allow them to deny the claim. Answer all questions truthfully, but completely. If you have "good days and bad days," be sure to point that out, and describe what a bad day looks like for you. if there isn't enough room for you to explain your impairments or answer a question fully, attach separate pages where appropriate.
Review the actual policy (not the summary plan description) to determine how a disability is defined. That will help you identify the actual date that you can be considered disabled under the insurance plan.
The last day you worked, also known as LDW, is also an important date. Gather as many documents as possible that support your disability before you stop working. In one case, a man quit his job and applied for LTD benefits, even though the doctor's medical records didn't show he was disabled yet. He was ultimately denied disability benefits; plus he lost his job and health insurance.
When interacting with your claims representative or any other insurance company personnel over the phone, keep a written record of whom you spoke with, what you discussed, and when the call took place. When your insurer provides you with important information over the phone, don't be afraid to ask, "Can I get that in writing?"
Likewise, don't rely on the word of the HR professionals in your office. While they probably mean well, they're unlikely to be well-versed in the specifics of your long-term disability policy. When in doubt, get it in writing.
It's important to maintain a healthy skepticism in all interactions with your insurance company or plan administrator, because the slightest, most innocent remark could spell trouble for your claim. For instance, try not to make calls to your insurer from anywhere other than your home. If the person on the other end hears noise in the background (like the sound of a car, shopping mall, or even children on a playground), it could be used against you to show that you can work.
Similarly, many insurance companies have fraud detection departments that conduct video surveillance of disability applicants, so don't perform any activities that are restricted by your doctor. The old saying that "it's not paranoia if they're really out to get you" could have been coined with an LTD insurer in mind.
After you file a claim, your insurance company might require you to attend a consultative examination with an "independent" physician. In some cases, these doctors perform only perfunctory examinations and write reports indicating that you're either exaggerating your symptoms or making them up altogether.
If you aren't sent for a consultative exam, a physician employed by your insurance company will review your medical records and, more often than not, might decide that your allegations aren't supported by the medical evidence.
Before attending a consultative examination arranged by your insurance company, consider making a list of the ways your impairments affect you on a daily basis. Are you able to go shopping, cook meals, clean the house, take showers, or walk up and down steps? Use this list at the appointment to remember all of your limitations. If you fail to mention that you're having difficulties in a certain area, the doctor will presume that you have no restrictions.
Do not attempt to fake or exaggerate the severity of any of your medical issues, as doctors are trained to look for this. (Some of them, particularly those working for insurance companies, even detect it when you're not exaggerating or "malingering" (faking your symptoms).)
Finally, when you go to your consultative exam, take note of the time your exam began and when it ended. It's surprisingly common for exams to last for as little as 10 or 15 minutes, but this fact isn't usually reflected in the doctor's report.
Insurance companies will generally request your recent medical records at their expense, but unfortunately, they often fail to ask for or obtain important records. Ask your insurer what records are being used to decide your case, and let them know if anything relevant is missing. Also, keep your insurance company up-to-date on what medical treatment you're currently receiving, so it can update your records as needed.
Whether you're thinking about filing an LTD claim or have already been denied LTD benefits, consider hiring an experienced ERISA attorney. Your attorney will:
If necessary, your lawyer can also file a lawsuit against your insurance company in federal court. Most ERISA attorneys will not charge a fee unless you win your case. You may be able to arrange a free consultation with an ERISA attorney in your area.
Read our article on why you might want to hire an LTD lawyer.
Updated February 29, 2024
Originally written by Ben Glass, a long-term disability attorney with BenGlassLaw. Mr. Glass practices law in Virginia.
]]>The lawyer usually gets 25% to 40% of your LTD settlement amount or your monthly benefits. So, for example, in a case where you win $30,000 in past-due benefits, your attorney might charge anywhere from $7,500 to $12,000. If you don't win your LTD case, your attorney doesn't collect a fee.
Before agreeing to a contingency fee for a long-term disability claim, make sure you're clear on the exact percentage of your award the attorney will receive. Remember that everything is negotiable: if your attorney offers to take your case for 40%, consider making a reasonable counter offer, perhaps at 25%. If you can't come to an agreement on the fee, call another firm and do some comparison shopping. But don't forget that you generally get what you pay for. Hiring an inexpensive attorney with no experience is a false economy.
If your case settles and you obtain a single lump-sum settlement for past and future long-term disability benefits, it's easy to determine your lawyer's fee. But what if your LTD insurance company approves you for monthly LTD benefits instead of a one-time settlement? Will your lawyer receive a percentage of only the past-due benefits, or the future monthly amounts as well? Do you want to be paying your lawyer a sizable chunk of your monthly check for as long as you receive benefits? Think very carefully before agreeing to pay your lawyer any portion of future benefits; it can cost you dearly.
You might be able to get your insurance company to pay your attorney's fees if your employer pays for your long-term disability policy (because then it's governed by ERISA), but you're probably out of luck if you have an individual plan.
ERISA. The law governing most group LTD plans, the Employee Retirement Income Security Act (ERISA), contains a provision whereby a federal court can order your LTD insurer to cover your attorney's fees. Such an award is at the discretion of the judge, and it's by no means automatic. LTD insurance companies won't cover attorneys' fees unless a judge specifically orders them to do so.
A Supreme Court case, Hardt v. Reliance Standard Life Insurance Company, made clear that you don't necessarily need to be the "prevailing party" to receive attorneys' fees. Rather, you need to demonstrate "some degree of success on the merits," a standard that hasn't been applied consistently since the Court's decision in 2010. (560 U.S. 242 (2010).) Still, most courts consider five factors in deciding whether to award attorneys' fees:
While the Court's reasoning technically allows insurers to seek attorneys' fees from disability claimants, this move is rarely pursued by insurance companies or granted by courts.
If a judge awards you attorneys' fees, note that the award won't cover the attorney's time spent on the administrative appeal within the insurance company, only the hours spent on litigation in the federal district and appellate courts.
Individual plans. Those with individual LTD plans or group plans not covered by ERISA operate under the "American Rule," which states that each party pays for his or her own attorney. This rule is rarely set aside absent extraordinary circumstances.
Most disability law firms will front the money for litigation-related expenses, but will require you to reimburse them for these costs when your case concludes. Expenses typically include the following:
The expenses are charged separately from your attorney's fee, and you'll likely be required to pay them even if you lose your case. Read the lawyer's expense agreement carefully before signing it, and be wary of agreeing to reimburse your attorney for "overhead" or anything else unrelated to your particular case. When your case has ended, you should receive an itemized list of expenses along with your bill.
Although attorneys sometimes go unpaid under contingent fee agreements, other times a lawyer will work on a case for only a few hours (or less) and, per the agreement, be entitled to several thousand dollars. This strikes many clients as unfair, and even lawyers themselves debate the ethics of it. Many state bar associations prohibit lawyers from charging fees that are clearly excessive or unrelated to the amount of work performed, even with a contingent fee.
If you feel your attorney's fee is grossly disproportionate to the amount of work performed, you should first discuss the issue with your lawyer. Some lawyers will reduce the fee on their own; others won't. To file a complaint about excessive attorneys' fees, contact your state bar association.
For most long-term disability claimants, giving their attorney a percentage of their past-due benefits is well worth it. Read our article on why you should hire an LTD lawyer to find out why.
]]>Depending on your policy, your long-term disability (LTD) plan will typically pay a base payment that's between 50% and 80% of your "pre-disability earnings," up to a maximum. (Here are some tips on understanding your long-term disability policy.)
Usually your pre-disability earnings consist solely of the monthly wages you were earning right before you became disabled, but some policies factor in other forms of compensation such as bonuses, commissions, and overtime.
All LTD plans have a maximum monthly payment, which can range in between $4,000 per month to $25,000 per month.
Read your policy's summary plan description or check with the human resources (HR) department at your company for the specifics of your plan. Also, ask your claims handler for your earnings calculations to make sure your pre-disability earnings were calculated properly.
If you've been approved for benefits, you can expect your benefits to increase by 1% to 3% each year if your policy contains a cost-of-living adjustment (COLA) provision. The COLA may be part of your basic coverage or offered as an optional rider to your plan, which you or your employer might have added on.
A COLA provision is usually indexed to a well-known measure of inflation, such as the Consumer Price Index (CPI).
Factors that can lower your LTD amount include other benefits or earned income you're receiving and whether your benefits are taxable.
Virtually all LTD policies require you to file for Social Security disability, because LTD insurance companies can offset your Social Security disability benefits against your monthly LTD payment. The offset works like this: If you receive $1,400 in LTD benefits and are approved for $1,100 from Social Security, you will receive the full $1,100 from Social Security, but only $300 from your LTD insurance company, for a total of $1,400.
Similar offsets exist for other types of income, including workers' compensation, third-party personal injury settlements, and retirement benefits.
If the amount of the offset exceeds your LTD check, your LTD insurance company will pay nothing, unless your policy contains a minimum monthly benefit. A minimum monthly benefit might entitle you, for example, to the greater of $100 per month or 10% of your gross monthly benefit, even if your offset is more than the LTD amount. If your LTD policy has a minimum, it should be set out in your summary plan description.
Returning to work while on long-term disability could put your benefits in jeopardy or reduce the amount you receive each month. Depending on your policy, however, this might not be true for you. If you have an "own occupation" policy, which pays you benefits if you can't work in your own occupation, you can still work without losing your eligibility for benefits.
If you have an "any occupation" plan, you won't get benefits unless you can't do any type of work because of your impairments. Accordingly, if you start working while receiving benefits under an "any occupation" plan, the insurance company will reduce your monthly payments by the amount you're earning, or worse, will regard your employment as proof that you're no longer disabled.
Note that many policies shift their definition of disability from the inability to perform your "own occupation" to "any occupation" after two years.
For more information, see Nolo's article on the definition of disability and other LTD policy terms.
In general, if the premiums for your LTD policy were paid for with before-tax dollars (as is almost always the case with an ERISA employer-provided group plan), your LTD payments will be taxed as ordinary income to you.
For individual plans purchased with your own after-tax dollars, LTD benefits aren't considered taxable income.
If you and your employer shared the cost of the premiums, only the portion of the LTD payments attributable to the premiums your employer paid is taxed as income. Consult an experienced tax attorney if you're unclear about how your payments will be taxed.
The terms of your particular policy will dictate how long you can collect long-term disability payments. Although many plans pay benefits until age 65, others pay for a fixed number of years, often five or ten. If you become disabled after age 60, most plans allow you to receive benefits even after you turn 65.
Virtually all policies currently limit how long you can receive payments for disabilities based on mental or nervous disorders, usually to 24 months of benefits.
Failing to obtain ongoing medical treatment and returning to work may also terminate your benefits.
There are two common mistakes people make when filing for LTD benefits that reduce their monthly payments unnecessarily, or even void their coverage entirely. Some individuals quit their jobs because they're unable to work and then try to file for LTD benefits. Unfortunately, under many group policies, disability coverage ends once the employment relationship has terminated.
Other workers ask their employers for reduced hours or a less stressful (and often lower-paying) position. Because monthly LTD payments are usually calculated using the employee's pre-disability salary, transitioning to a lower-paid position or part-time role could reduce your monthly benefits significantly (because your "pre-disability" earnings will be lower than when you were working full-time or at full capacity).
Finally, many LTD policies define "disability" as the inability to perform the duties of one's own occupation, so transitioning to a less strenuous job before applying for benefits can actually make it harder to be found disabled. The insurance company will use the less strenuous job you've been doing as the standard for whether you can work.
To ensure that you both maintain LTD coverage and maximize the amount of your benefits, be sure to file your LTD claim while you are still employed at your regular occupation. Read more about mistakes to avoid when filing a long-term disability claim and consider contacting a long-term disability lawyer if you run into trouble.
]]>Employer-provided group long-term disability insurance is governed by ERISA, the Employee Retirement Income Security Act, a federal law that provides for very specific procedures and time limits for filing LTD claims. A lawyer experienced with long-term disability claims will know how to abide by the ERISA rules and help you succeed, especially in the following areas.
One provision that frequently catches applicants by surprise is that, in a lawsuit against your insurer, you're generally prohibited from introducing new evidence. The federal judge, with very limited exceptions, decides your case based on what's in your claims file with the insurance company (called the "administrative record").
An experienced ERISA lawyer will try to "stack the administrative record" with medical, vocational, and other favorable evidence before you "exhaust" your internal appeals—that is, you complete your appeal within the insurance company. (Learn more about the LTD appeal process here.)
Your attorney will make sure that your claim file contains all your relevant medical evidence and will work with your physicians to obtain supportive opinions about your work-related limitations. Knowing the right questions to ask your doctors, rather than relying on the often biased paperwork provided by your insurance company, can be one of your attorney's most valuable contributions.
Depending on whether you have an "own occupation" or "any occupation" disability policy, your attorney may ask a vocational expert to testify about the requirements of your position or the overall labor market. It is rarely a good idea to rely on the testimony of supposedly "independent" vocational experts hired by your LTD carrier.
In addition to obtaining persuasive evidence of your disability, your attorney will also interact with the LTD carrier or plan administrator on your behalf, file your initial application and appeals in a timely manner, conduct settlement negotiations, and if necessary, bring a lawsuit in federal court.
It's never too early to hire an attorney to represent you in your long-term disability case. As soon as you become unable to work, contact an LTD attorney to discuss how you should proceed. An attorney will generally give you a free consultation or case evaluation over the phone or in person, so there's nothing to lose.
While many workers filing for LTD benefits wait until their claim has been initially denied to talk to an attorney, hiring a lawyer to help with your initial application can protect your interests, and it's highly recommended. Here are some examples of common mistakes made by unrepresented workers who are trying to file an LTD claim on their own:
If you've already filed your initial application and have been denied, it's critical to hire an attorney to help with your administrative appeals. Both group and individual LTD policies contain strict timelines, often 180 days, to appeal a denial, so don't delay.
Most disability attorneys handle LTD cases on a contingency fee basis, typically charging between 25% and 40% of the past-due benefits that the insurance company owes you. Under a contingency arrangement, you don't owe the lawyer a fee unless you win your case.
Your attorney will likely front the money for the costs of litigation, including depositions, travel expenses, medical records, and postage, but require you to reimburse the costs of these expenses, sometimes even if you lose your case. Be sure to ask about:
Also, be aware that some LTD attorneys charge a percentage of your past-due benefits and your future benefits as well. Feel free to try to negotiate this term, and if your attorney insists, consider taking your business to an LTD attorney who will accept a one-time payment from your back benefits. For more information, see our article on how much an LTD lawyer costs.
It's essential that you find an attorney with experience handling long-term disability cases rather than a general practitioner who will have to learn ERISA law on the fly. LTD cases are too complex and too important to be handled by a lawyer who doesn't specialize in disability law.
Updated February 28, 2024
]]>Claims administrators deny disability applications for an endless number of reasons, both legitimate and illegitimate. Understanding why claims are denied will help you present the best case possible at an appeal at the "administrative level" (within your insurance company) and in federal court. Here are some of the most common reasons for being denied long-term disability coverage.
Having supportive medical records, including the following, is key to winning LTD benefits.
Regular medical treatment. It's nearly impossible to prevail in a long-term disability case without going for regular medical treatment. Your insurer will expect you to make visits to your primary care physician and appropriate specialists at regular intervals. If you suffer from a psychiatric condition such as depression or anxiety, you should be seeing a mental health provider, preferably a psychiatrist or psychologist, at least monthly. If you have a physical impairment, you should be visiting the doctor every one to three months, and your doctor should be giving you objective tests, including x-rays, MRIs, or CT scans, whenever possible.
No missing medical records. Occasionally, disability claims are denied due to insufficient medical evidence just because the LTD insurance company has failed to obtain all your medical records. Ask your disability carrier for a list of the records it has requested and those it has received. If records are missing, make sure that your insurer requests the appropriate records. Some persistence may be required.
Supportive doctor's statement. Perhaps the single most important factor in proving your disability is the opinion of your treating physician. You or your attorney should ask your doctor to provide a detailed opinion as to your work-related medical limitations. Do not have your doctor fill out the forms from your insurance company, as these are often designed to elicit responses that will support a denial. Have your doctor write a letter that details exactly how your impairment limits your work abilities and ties your limitations to the medical evidence. If your treating doctor refuses to support your case, find a doctor who will.
Check your policy's summary plan description for the precise definition of disability to see if you can meet it. Under an "own occupation" LTD policy, you're disabled if you're medically unable to carry out the duties of your particular occupation. An "any occupation" policy defines disability more narrowly: the inability to perform the duties of any job. Some LTD plans transition from using "own occupation" rules to using "any occupation" rules after a certain length of time, usually 24 months.
Also, check your policy's summary plan description for any excluded conditions. Medical impairments related to substance abuse or pre-existing conditions are typically excluded from coverage. And individuals whose conditions are based heavily on subjective complaints rather than objective testing (such as depression, fibromyalgia, or chronic fatigue syndrome) may be limited to 24 months of benefits. (For more information, see Nolo's article on understanding your LTD policy.)
If you're in the process of filing a long-term disability claim or are already receiving LTD benefits, be aware that your insurance company may ask investigators to follow you and take video surveillance. If an investigator records you performing activities that are inconsistent with your claims that you're disabled, your claim could be denied—or your previously awarded benefits could be terminated.
In some cases, insurance companies use video recordings to justify a disability denial even where the videotape doesn't actually prove you aren't disabled. For example, individuals with fibromyalgia often report having "good days and bad days" with regard to pain. If a surveillance team "catches" such an individual performing light yard work, this evidence could be used to justify a denial, even if the video was taken on a "good day."
The best advice for dealing with the threat of video surveillance is to act in accordance with your doctor's restrictions. If your physician has advised you to walk with a cane and avoid lifting more than five pounds, don't shovel the snow in your driveway or bring heavy bags of groceries in from your car. Doing so could place your health and your disability benefits in jeopardy.
Take special note of any deadlines when filing and appealing your LTD claim. Most individual plans and all group plans governed by ERISA give you 180 days to appeal an initial denial. You may want to use this time to hire an LTD attorney who will help gather medical records and other documentation to "stack the administrative record" with favorable evidence.
If you miss the 180-day deadline, you won't be allowed to sue your insurer in federal court because you have "failed to exhaust your administrative appeals." Look for your filing deadline on the notice of denial from your insurance company, and file your appeal as soon as you can.
Similarly, be sure to submit all medical evidence as soon as possible in the appeals process. Under ERISA law, federal courts are limited to considering only the evidence contained in the administrative record (your file at the insurance company), so don't wait until you get to federal court to present medical records, doctor's reports, third-party statements, or any other evidence helpful to your case. If evidence hasn't been submitted to your insurance company, it almost certainly won't be allowed in federal court.
Also, read about the common mistakes applicants make on their long-term disability disability applications, and do your best to avoid them.
]]>LTD claims based on back problems are hard to prove. But there are some things you can do to improve your chance of getting the benefits you deserve. This article will discuss some of the most common back problems that could qualify for LTD benefits and how to build your strongest case so you can get long-term disability for your back pain.
Any medical condition that causes back pain could qualify you for long-term disability benefits—if it’s severe enough. Serious and painful impairments can involve any part of your back, including the:
Some of the most common back problems can also be some of the most difficult medical conditions to document using objective evidence. The following are some common types of back pain that could be severe enough to qualify for long-term disability benefits.
Degenerative disc disease causes back pain when the cartilage discs that cushion your vertebrae deteriorate. While healthy discs are flexible and shock-absorbing, DDD causes discs to become thin and rigid. Degenerative disc disease generally causes chronic lower back pain that can radiate into your:
Most people over 60 have some degree of disc degeneration, but not everyone feels pain from this deterioration. Severe cases of DDD can be extremely painful and are sometimes treated with spinal fusion surgery or the insertion of an artificial disc.
A herniated disc, sometimes called a ruptured or slipped disc, occurs when the soft interior portion of the disk breaks through the disc’s tougher exterior and extends into the spinal canal. This rupture can cause nerve irritation and result in some or all of the following symptoms:
A bulging disc (when a disc simply swells outside its normal position but doesn’t rupture) is less serious than a herniated disc and rarely disabling on its own.
Spinal stenosis is a narrowing of the spinal canal and most often affects the cervical (neck) or lumbar (lower) regions of the back. When the spinal canal narrows, it causes compression of the nerve roots (in lumbar stenosis) or the spinal cord (in cervical stenosis). Cervical stenosis can be particularly dangerous.
Common symptoms of spinal stenosis can include any or all of the following:
Spinal stenosis is treated in several different ways, depending on the severity and location of the stenosis. Treatment can include anti-inflammatory medication, physical therapy, or nerve decompression surgery.
Inflammatory conditions involving the spine can be caused by arthritis, infection, or osteoporosis (see below). Spinal inflammation can cause severe back pain and other symptoms. Some common inflammatory conditions affecting the spine include the following:
Osteoporosis is characterized by a loss of bone density—bones become more brittle and easier to break (fracture). Vertebral fractures caused by osteoporosis can result in intense pain and can require surgery.
Virtually any medical condition involving your back can qualify you for LTD benefits. But you’ll need to prove to the insurance company that you have a back abnormality that's causing you to be limited. You’ll have to gather evidence that relies on objective medical tests like:
Objective medical tests are the best evidence to submit to your insurance company, but still, they can’t measure how much pain you’re in. Alone, they're often not enough to win an LTD claim for back pain because not everyone experiences back trouble the same way.
For example, two different people with the same spinal stenosis diagnosis and even similar MRI findings can possess marked variations in their abilities to function, including sitting, standing, walking, or lifting objects.
Your chances of success will greatly depend on the functional limitations you experience because of your condition and the way you demonstrate those limitations to the LTD insurance company.
It's uncommon for long-term disability claims for back pain to be supported by overwhelming objective evidence of a disability. But an MRI revealing severe DDD, for example, along with a functional capacity evaluation showing your range of motion is highly restricted, might be sufficient proof of disability for your LTD insurer.
But in the majority of cases, the objective evidence reveals abnormalities that could cause disabling limitations in some people but might allow others to work. In most of these borderline cases, LTD insurance companies won't hesitate to deny your claim for benefits and force you to submit more persuasive evidence of disability on appeal. How should you demonstrate to your insurer that you can't work?
There are three things you can do to strengthen your case for long-term disability for back pain:
Claims examiners are more likely to believe your back pain keeps you from working if they see that you’ve tried conservative treatments and they haven’t worked, including:
If your back pain is accompanied by mental health symptoms such as depression or anxiety, seek out a psychiatrist or other mental health provider. The contents of your medical records are often the deciding factor in a disability case.
Ask your treating specialist to assess your functional limitations in a narrative report or on a Residual Functional Capacity form (using a physical RFC form or a mental RFC form). Your doctor should describe any restrictions your back pain causes with:
Secondary symptoms such as fatigue and poor concentration should also be noted—especially if your doctor believes you’d have to miss a lot of work or need unscheduled breaks. The more detail and explanation your doctor can provide about your limitations, the better for your case.
Disability attorneys often recommend submitting statements from others who know you well, describing their observations of your physical limitations. You could submit letters from:
For more information, see our article on how to write a disability letter for a relative or employee.
If you’ve received a favorable disability decision (an approval) from the Social Security Administration, Workers' Compensation board, or another source, submit that with your claim or appeal.
Whatever evidence you submit, make sure to get it to your LTD insurer before the administrative appeals process closes. If your case is appealed to federal court, most judges limit their review to the "administrative record" that your insurer had access to during the internal appeal process. You won’t be allowed to add new evidence at this stage.
Long-term disability insurance pays cash benefits when you can’t work because of a medical condition, like severe back pain. Generally, your benefit amount is a percentage of your working wages (typically 50-80%).
For example, let’s say you earn $1,000 per week, and your LTD policy pays benefits equal to 75% of your wages. If your insurer grants your long-term disability claim for back pain, you’ll get $750 per week.
Your long-term disability benefit amount could go up a little if you’re disabled for more than a year. Some LTD policies include annual cost of living adjustments (COLAs) that raises the benefit amount by a few percentage points each year.
Other factors could lower your LTD benefits, including any money you earn from work and any Social Security benefits or workers’ compensation awards that you get.
Learn more about how much long-term disability pays and what can affect how much LTD you get.
While some degree of back discomfort is typical as you age, severe pain that interferes with your daily life and ability to work might prompt you to file a long-term disability claim. The single best choice you can make to increase your chances of winning benefits is to hire a qualified disability attorney to represent you. Long-term disability carriers have experienced attorneys working for them. You should too.
(Also, see what it takes to qualify for Social Security disability for back pain.)
Updated March 24, 2023
]]>Unfortunately, many LTD claims are initially denied, only to be approved on appeal. In fact, some insurance companies seem to deny almost all claims at first, regardless of their merit. So if your claim for long-term disability insurance benefits has been denied, you shouldn't give up hope.
You can generally appeal an LTD denial. With patience, persistence, and preparation (and sometimes help from an experienced attorney), you'll greatly increase your chances for a successful appeal. Here’s what you need to know if your long-term disability claim was denied and how to appeal an insurance denial.
The first step in preparing your long-term disability appeal is understanding why your LTD claim was denied. There are many reasons you might receive a long-term disability denial, including:
Understanding why your long-term disability claim was denied is the first step in appealing the insurance denial.
If you haven't already done so, get a copy of your LTD policy plan documents, including the summary plan description. You should be able to get this from your company's human resources department (if your employer provides group insurance) or directly from the insurer.
Unfortunately, this task isn’t always as straightforward as it sounds. If your HR department or insurer fails to provide you with the plan documents, request them in writing (via certified mail with return receipt) from the plan administrator at the insurance company. The plan administrator is required to provide them under a federal law known as the Employee Retirement Income Security Act (ERISA).
Carefully review the denial letter sent by your insurance company, noting the reason(s) why your initial claim was rejected and any other information that might be needed to approve your claim. Many LTD insurance denials happen because of technical issues, rather than the merit of the claim. Make note of the following:
The denial letter should also explain how and when to file your appeal. Be sure to mark any deadlines on your calendar, as missing a deadline is the quickest way to sink an otherwise worthy claim.
Once you understand why the insurance company denied your long-term disability claim and how your insurance company’s appeals process works, you can begin building your case.
If your LTD insurance denial was due to a technical issue, like a missing form, get the form completed so you can include it with your appeal. Make sure your insurance company isn’t missing any of your medical evidence.
Unfortunately, it’s not uncommon for insurance companies and plan administrators to fail to obtain all the medical records relevant to your LTD insurance claim. Find out which records the insurance company used to decide your case initially. If anything is missing, inform your claims representative.
Ask for confirmation of when your medical records were requested and received. And gather any missing records to include in your appeal.
If you're planning to hire an attorney to handle your LTD case, you should do so as soon as possible. Most people applying for long-term disability wait until receiving their denial letters to hire an attorney. But others opt to work with a lawyer while filing their initial claim.
Your attorney will work to put your case in the best light possible, often by obtaining additional medical evidence or soliciting opinions from your doctors or vocational experts. And many insurance companies and plan administrators, whether fair or not, seem to take a disability case more seriously when you’re represented by an attorney.
Whenever you decide to hire a lawyer, look for an experienced attorney who specializes in ERISA law. Note that disability lawyers generally collect attorneys' fees only if you win your case.
It's essential to "stack the administrative record" with favorable evidence before completing your LTD insurance company’s internal appeals process. Under ERISA law, federal courts usually refuse to consider any evidence that wasn't already presented to your insurance company or plan administrator in their internal appeals process.
And keep in mind that the disability questionnaire and other paperwork used by your insurance company might be designed to get you to respond in ways that could justify a denial. That’s why it's so important to answer all the questions from your carrier honestly and completely (using extra sheets if necessary) and to supplement your file with other favorable evidence.
Insurance companies commonly cite a lack of objective evidence as a basis for denying a claim. Contact your claims representative to ask if further objective testing would help your case. You might strengthen your claim by getting additional:
In general, the more objective medical evidence you provide, the better your chances will be of getting your insurance denial overturned.
Certain types of non-medical evidence can bolster your case for long-term disability benefits, including:
Evidence from a vocational expert can be particularly helpful if you have an "any occupation" long-term disability policy, which defines disability as the inability to engage in any job, not just your current one.
Finally and most importantly, ask your treating physicians and specialists to provide written opinions about the work-related limitations your medical condition causes you. Your attorney, if you have one, will be able to craft specific questions to your doctors based on the circumstances of your case.
The opinions of the doctors treating you are critical when you’re trying to convince an insurance company of your disability. Many doctors will charge a relatively small fee for completing LTD paperwork, but this is usually a worthy investment. If your physician isn’t willing to help with your case, and you believe your condition is severe, consider switching doctors. A favorable doctor's opinion is that important.
If you've exhausted all your administrative appeals (reviews within an insurance company) and your LTD insurance claim still hasn’t been approved, you can file a lawsuit in federal court. Going to court can be a confusing, time-consuming, and occasionally expensive process. For those reasons, you should consider hiring a long-term disability attorney.
(Find a lawyer specializing in long-term disability claims in your state.)
]]>If you're looking for information on collecting Social Security disability and unemployment at the same time, see our article on applying for SSDI while on unemployment.
Unemployment benefits, generally administered by a state agency, are intended for individuals who are ready, willing, and able to work, but have lost a job through no fault of their own. Those collecting unemployment benefits are required to certify that they're capable of working either full-time or part-time, depending on the state, and that they're actively seeking employment.
Long-term disability benefits, on the other hand, are provided by a private insurer and are meant for individuals who aren't able to work due to illness or injury.
The problem with collecting both at the same time is that you might be saying you're ready to work but that you're unable to work.
Long-term disability insurance companies and plan administrators will not hesitate to use an application for unemployment benefits against you. They may interpret your application as evidence that you think you can work. They may also find that you lack credibility because you're trying to maintain two supposedly contradictory positions at once: You're filing a claim for disability benefits based on your inability to work while at the same time affirming to the unemployment agency that you're ready and available to work.
Your state's unemployment agency may make similar assumptions if it discovers you've filed a claim for LTD benefits: namely that you're not "ready, willing, and able" to work and therefore don't qualify for benefits. The unemployment agency is likely to deny your claim for unemployment benefits if it finds out you're collecting disability benefits.
If your LTD policy defines the word "disability" in a certain way, you may be eligible for unemployment benefits if you were let go from your job. Review your policy's Summary Plan Description to learn whether you have an "own occupation" or an "any occupation" policy, or a hybrid of the two.
"Own occupation" LTD policies define disability broadly, as the "inability to perform the material duties of your own occupation due to illness or injury." Thus, a firefighter who becomes unable to meet the demands of that job may be eligible for LTD benefits even though she could theoretically work in a less strenuous position.
On the other hand, under an "any occupation" policy, you are disabled only if you're "unable to perform the duties of any occupation in the economy for which you are reasonably fitted based on your education, training, and experience." Many disability policies, especially employer-provided group plans, shift the definition of disability from "own occupation" to "any occupation" after a period of time, usually 24 months.
Those who receive LTD benefits under an "own occupation" policy (or during the first 24 months of a hybrid policy) might well be able to show that they're "ready, willing, and able" to perform some type of work, even though they can no longer work at their previous job. In this case, they could collect LTD benefits and unemployment benefits at the same time.
Still, your state unemployment agency may deny you unemployment benefits if it determines that you've stopped working "voluntarily and without good cause," a standard that varies from one state to the next. Keep in mind that your state's unemployment agency may contact your employer to ask about the nature of your work separation.
If your LTD policy provides for partial disability benefits, your chances of receiving both partial LTD benefits and unemployment benefits might be higher. Your state unemployment agency is less likely to use your receipt of partial LTD benefits against you, because it is highly possible that you could be "partially disabled" (that is, unable to substantially maintain your previous earnings from full-time work) but still be able and available to work certain types of jobs.
Most long-term disability policies contain LTD offsets for "other income benefits," such as Social Security disability payments, workers' compensation, third-party settlements, and, yes, unemployment benefits. In cases where an individual receives both LTD and unemployment benefits, LTD insurers are frequently able to deduct the monthly unemployment amount from their monthly LTD payments. Thus, if an individual receiving $1,400 per month in LTD benefits is approved for $1,000 each month in unemployment benefits, the LTD insurer would pay a reduced benefit of $400 for as long as the individual is receiving $1,000 per month in unemployment benefits.
Offsets for unemployment benefits and other forms of income are common to both individual and group LTD policies, although individual policies are occasionally written to exclude certain offsets (in exchange for higher monthly premiums).
If you're worried that filing for unemployment benefits may cost you your long-term disability benefits, arrange a consultation with a long-term disability lawyer before you file for unemployment.
Updated June 6, 2022
]]>Read your policy carefully to understand whether and for how long you can receive benefits based on fibromyalgia. The following language limiting eligibility is fairly typical.
Benefits will be terminated after 24 months for those with disabilities which are based primarily on self-reported symptoms, and disabilities due to alcoholism, drug abuse, or mental illness. Self-reported symptoms include manifestations of your condition that are not able to be verified using tests, procedures, or examinations commonly accepted in the practice of medicine, including headaches, pain, fatigue, soreness, numbness, dizziness, ringing in the ears, and loss of energy.
Even if your policy doesn't specifically mention fibromyalgia as being excluded or limited, you should expect to meet substantial resistance if you file for LTD benefits based on fibromyalgia. Here are a few things to remember that could increase your chances of a successful claim.
Insurance companies are well aware that primary care physicians frequently diagnose fibromyalgia as a sort of "catch-all" when they cannot pinpoint the source of an individual's pain. If you want your insurer to take your fibromyalgia claim seriously, it's critical that you receive regular treatment from a rheumatologist, not just your family physician. Rheumatologists typically employ several different diagnostic techniques when evaluating a patient for fibromyalgia, including blood tests to rule out other illnesses and trigger point tests to locate areas of pain and tenderness. Generally an individual who reports pain in at least 11 of the 18 trigger points will receive a diagnosis of fibromyalgia. (Also see our article on getting Social Security for fibromyalgia, which discusses criteria used by the American College of Rheumatology (ACR) to determine when a patient has fibromyalgia.)
In addition to making a more accurate and credible diagnosis, a rheumatologist may be better able to prescribe therapies for your particular symptoms. Although there is no cure for fibromyalgia, it is often possible to control the pain and accompanying fatigue through medication, exercise, and a proper diet.
In addition to chronic pain, many fibromyalgia sufferers also experience headaches, numbness, swelling, fatigue, IBS, and difficulty sleeping. Fibromyalgia may also adversely affect a person's mental health, causing cognitive problems (often called "fibro fog"), depression, stress, and anxiety. Keeping a diary of all your symptoms, both mental and physical, will help your physicians diagnose and treat your illness, and may help to persuade your insurer that your condition is legitimate.
The opinion of your treating physician can literally make or break your LTD case, and it's especially important in cases involving fibromyalgia, chronic fatigue syndrome, and other conditions that don't lend themselves to objective testing. You or your attorney should ask your physician (preferably your rheumatologist) to identify the extent of your work-related limitations, especially in the following areas:
Also, would you miss days of work or have to take unscheduled breaks during the workday due to pain, fatigue, or other issues? Would you need to recline or lie down during the day? Your doctor should be asked about any limitations that might prevent you from performing the demands of full-time work. It is also be helpful for your rheumatologist to explain what diagnostic testing was performed and why she ultimately believed a fibromyalgia diagnosis was supported by the medical evidence.
If you're receiving mental health treatment for depression, also ask your doctor or psychologist for an opinion as to your mental limitations, including your ability to maintain regular attendance, sustain attention and concentration, understand and carry out instructions, and interact with supervisors, co-workers, and the general public.
Your lawyer should be able to supply a fibromyalgia assessment form for your doctor that encompasses all your possible limitations. Do not rely on the forms used by your insurance company, as they are often designed to elicit responses that could form the basis for a denial.
Reports from third-parties such as friends, family members, and former colleagues can also help bolster an LTD disability claim, but only if they're limited to first-hand observations of your condition rather than opinions about your medical issues.
Whether you have an individual LTD policy or an employer-provided group plan, your policy is likely to be complex and riddled with exceptions, exclusions, and limitations. It's important, especially in notoriously challenging claims involving fibromyalgia, that you have an experienced LTD attorney on your side to help you meet deadlines and pursue your appeals while putting your case in the best possible light. You should be able to set up a free consultation with an LTD lawyer before you hire one.
]]>While no cure for cancer has yet been developed, modern medicine has been remarkably effective at arresting the spread of certain cancers and limiting or eliminating their worst symptoms. Still, if you suffer from cancer and it prevents you from performing the material duties of your own occupation or any occupation in the economy (depending on how your policy defines disability), you will be eligible for long-term disability benefits.
Doctors often classify cancer into "stages" based on the size of the tumor and to what extent it has spread throughout the body. Stage 1 cancer involves an abnormal growth of cells that is confined to a single part of the body. Depending on the location, stage 1 cancers can sometimes be removed surgically. Successful LTD claims based solely on stage 1 cancer are exceedingly rare.
Cancers at stage 2 are growing but still localized or spread only to nearby lymph nodes. Stage 3 cancers usually have advanced to lymph nodes farther afield. LTD benefits may be available to those with stage 2 or 3 cancer, especially when accompanied by severe symptoms such as pain, weakness, fever, cough, headaches, nausea, and fatigue.
Cancers that metastasize (spread) beyond the regional lymph nodes into distant parts of the body are deemed stage 4. Stage 4 cancers are sometimes receptive to treatment, but more often they involve severe symptoms that easily form the basis for a successful LTD claim.
Treatment options for cancer patients vary significantly depending on where the cancer is located and how far it has spread. On one end of the spectrum, cancerous skin lesions can be removed through routine surgery requiring little or no time off from work. On the other end, lung cancer, which is the most deadly form of cancer, typically calls for chemotherapy and radiation. Other cancer treatments include gene therapy, proton therapy, laser treatments, and bone marrow transplants.
Chemotherapy, in particular, tends to cause side effects including nausea, fatigue, pain, compromised immune system, and digestive problems, any of which can prevent you from working. Radiation, which like chemotherapy destroys some healthy cells while targeting those that are cancerous, may be accompanied by persistent fatigue, skin irritation, or other symptoms that can limit work activities.
In many cases, the debilitating side effects of these treatments can give rise to a claim for short-term disability insurance payments, which replace a portion of your income for up to six months. Disability insurers generally approve short-term disability claims at a higher rate than those for long-term benefits.
These treatments can also cause long-lasting residual effects, called "late effects," that could form the basis of a long-term disability claim. Some common examples include heart problems, respiratory issues, nerve damage, muscle weakness, osteoporosis, and fatigue, among many others.
If you're applying for long-term disability benefits, expect your case to be closely scrutinized, even if your cancer has reached stage 2, 3, or 4. It's essential that your claim file contain all the medical evidence relevant to your disability. ERISA, the federal law governing most LTD plans, allows workers or their attorneys to request a free copy of the claim file from the plan administrator. Once you've obtained a copy of your file, make sure it contains your diagnostic tests (biopsies, bone scans, CT scans, x-rays, MRIs, ultrasounds) as well as the clinic notes from your treating provider and oncologist.
Statements from friends and family members regarding your day-to-day limitations, along with observations from co-workers about on-the-job difficulties, can also strengthen your case. Be sure to "stack the administrative record" with favorable evidence prior to the time your insurance company makes its final decision on your case. ERISA generally prevents claimants from presenting new evidence to a court on appeal if such evidence was not presented to your insurer.
Finally, it's a good idea to hire an attorney who specializes in disability law to handle your long-term disability case. An experienced disability lawyer will not only keep track of deadlines and communicate with the insurance company on your behalf, but he or she will also understand how to present your case in the most persuasive way possible. A lawyer can also work with your physicians to obtain helpful medical opinions and compelling objective evidence demonstrating that you're unable to work. Most disability attorneys provide a free consultation and collect a fee only if you win your case.
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Clinical depression is a mood disorder marked by persistent feelings of sadness, isolation, and agitation that interfere with one's daily life. Depression may also be manifested in physical symptoms that include fatigue, sleeplessness, and changes in appetite. Those with severe depression may experience crying spells, hallucinations, delusions, and suicidal thoughts or actions. The causes of depression are not exactly known, but are thought to include chronic pain, stress, substance abuse, and genetic factors. Treatment usually consists of talk therapy and/or medication.
Individuals with bipolar disorder, also called manic-depressive disorder, experience feelings of depression alternating with episodes of mania. During a less severe "hypomanic" episode, individuals may be highly energetic and productive, while more severe "hypermanic" periods might feature racing thoughts, hyperactivity, sleeplessness, impulsive decision-making, or irritability.
Those with acute forms of bipolar disorder may experience psychotic symptoms, including delusions and hallucinations. Depression and manic episodes can cycle back and forth rapidly, over a period of a few hours, or slowly, over weeks or even months. People who experience mania and depression at the same time are said to be in a "mixed state." Treatment for bipolar disorder often consists of a combination of counseling and mood-stabilizing or antidepressant medications.
It is increasingly common for LTD insurers to limit payments for mental and nervous conditions to two years. This provision appears in virtually all employer-provided group plans (ERISA-governed LTD plans) as well as many LTD individual policies, though individual policyholders may be able to purchase a rider that will remove this term in exchange for a higher monthly premium.
A typical limitation might read as follows:
Disabilities, due to illness or injury, which are based primarily on self-reported symptoms, and disabilities due to mental illness, alcoholism, or drug abuse, will be limited to 24 months of benefits.
Self-reported symptoms are defined as "manifestations of your illness which you report to your doctor, including pain and fatigue, that are not verifiable with objective tests or clinical examinations."
Note that many policies exempt certain mental illnesses from the two-year limitation, most often schizophrenia, Alzheimer's Disease, organic brain disease, dementia, and occasionally bipolar disorder. If your policy exempts these disorders from the two-year limitation, you may be able to collect LTD benefits indefinitely, for as long as you remain disabled. The two-year limitation almost always applies to depression.
If you suffer from another disabling condition (such as chronic back pain) to which the two-year limitation does not apply, you should continue to receive benefits for as long as you remain unable to work due to that condition.
It is essential to receive consistent treatment from a mental health professional, preferably a psychologist or psychiatrist, to have any chance of prevailing on a claim for depression or bipolar disorder. Make sure that your insurer carrier has requested and received all the medical records related to your condition, including those from your treating doctors and any hospitals or psychiatric facilities where you've received treatment. Don't simply rely on your LTD carrier to solicit all the evidence it needs to make an informed decision in your case.
While your LTD carrier will likely contact your treating physician for an opinion about the functional limitations caused by your condition, the insurer's paperwork may be less than thorough than you would want, or may be designed to elicit responses unfavorable to your claim. To help your case, you should make sure that detailed findings from your treating doctor about your vocational limitations get into your record. In particular, you should ask your doctor to submit information to the insurance company discussing any limitations you have in the following areas:
To do this, your doctor may either complete a Residual Functional Capacity (RFC) form supplied by your lawyer or write a letter addressing your abilities in the areas listed above. Finally, your doctor should indicate if he has restricted you from working as part of your treatment.
While insurers tend to rely largely on medical records and opinions in making their decisions, you may wish to submit statements from third-parties, including former colleagues or supervisors, that discuss their observations of any difficulties you've had while working.
Receiving LTD benefits for bipolar or depression is just as difficult, if not more so, than receiving Social Security disability (SSDI) benefits. The major difference is that Social Security does not put any time limitation on the receipt of benefits for mental illnesses; if you are approved, your SSDI benefits won't be cut off after two years, although you may be subject to Continuing Disability Reviews. In general, your chances of receiving LTD or SSDI based solely on a mental illness are roughly similar, but your LTD insurer is much more likely to terminate your disability benefits after you've been approved. Find out more about LTD benefits and SSDI benefits.
]]>The first thing to do if you're considering filing an LTD claim is to request a copy of the actual LTD policy and the summary plan description from your employer's human resources department. Those with individual plans should send a written request for plan documents directly to the insurer. Once you've obtained a copy of the policy and the summary plan description, read over them carefully, paying special attention to your plan's provisions in the following areas.
Your policy's definition of "disability" can have a major impact on whether you qualify for benefits. LTD policies fall into two broad categories: "own occupation" and "any occupation." The definition of disability found in an "own occupation" policy might look like the following:
Disability exists when, due to illness or accidental injury, you are not able to perform, for wage or profit, the material and substantial duties of your regular occupation.
Notice that you're disabled under an "own occupation" policy if you're unable to carry out the duties of your own job. If you're a firefighter who is medically unable to handle the physical or mental requirements of that demanding job, you're disabled, even if you would be able to perform another, less strenuous job. (Indeed, you can often work another job in this situation. Read Nolo's article on whether working will reduce your LTD benefits to find out more.)
The definition of disability in an "any occupation" policy is more strict, as you usually must demonstrate that you're incapable of performing any job for which you are reasonably qualified based on your education, training, or experience. A firefighter who cannot lift heavy objects or climb ladders would not be disabled under an "any occupation" policy if he's still capable of performing other jobs, such as a clerk or cashier.
Many LTD policies switch from "own occupation" to "any occupation" after a certain period of time, often 24 months. Disability benefits may be terminated either because the definition of disability has become more strict (for instance, it changes to "any occupation") or because your insurer finds that you've experienced medical improvement related to your ability to work.
Mental conditions. Benefits for disabilities based on mental and nervous conditions are typically capped at 24 months, though exceptions for illnesses such as schizophrenia and organic brain disease are common. Disabilities arising from substance abuse or alcoholism may be covered only for a short time or not at all.
Pre-existing conditions. Nearly all policies have exclusions for "pre-existing conditions," often defined as any condition for which you've received medical treatment in the previous 90 days.
Waiting period. Your LTD policy is also likely to contain an "elimination period," a waiting period during which you're disabled but not entitled to LTD benefits. The elimination period is often three to six months, and usually corresponds to the length of your short-term disability benefits.
Duration of benefits. Some LTD policies will pay benefits until you turn 65, but others pay only for a limited number of years. Check the summary plan description to determine your policy's maximum duration. The amount of benefits you'll receive varies from one policy to another, but most pay between 50% and 80% of your former salary.
Social Security disability. You will almost certainly be required to file for Social Security Disability Insurance (SSDI) benefits if you receive LTD. Your insurance company will "offset" your Social Security disability benefits against your monthly LTD amount (pay you less, by the amount of your Social Security benefits you receive).
Taxability of benefits. Whether your LTD benefits are taxable depends on whether your premiums are paid with before-tax or after-tax dollars. If you or your employer pay your premiums with before-tax dollars, your LTD benefits are taxed, as ordinary income. If you paid your LTD premiums with after-tax dollars, the benefits are generally tax-free.
Group health insurance plans are governed by a federal law known as ERISA, the Employee Retirement Income Security Act. ERISA provides that LTD insurance companies themselves decide whether you're approved for benefits, a process that frequently results in good cases being denied. Be sure to follow your insurance company's instructions for filing your initial claim to avoid having your claim denied unnecessarily.
Read your policy for rules about filing an internal appeal, and take special note of all deadlines. You must exhaust your insurer's internal appeals process before taking your case to federal court.
Under ERISA, federal court judges are generally limited to reviewing the "administrative record" and will not consider any evidence that wasn't presented during your internal appeals. Thus, when you file an internal appeal, it is critical that you supplement the administrative record with favorable medical evidence, especially supporting statements from your treating physicians.
You should consider hiring an experienced long-term disability attorney to help you navigate the administrative appeals process and "stack the administrative record" in your favor. Most disability attorneys charge a fee only if you win your case.
]]>Whether you'll continue to receive your full long-term disability benefits depends on the specifics of your LTD policy, but as a general rule, those with "own occupation" policies are usually given greater freedom to work than those with "any occupation" policies. Read your policy's summary plan description, check with your claims handler, or consult your disability attorney if you're unsure whether you have an "own occupation" or "any occupation" policy. Here's the difference.
"Own occupation" (often called "own occ") LTD policies generally define disability as the inability to perform the substantial and material duties of your chosen occupation for medical reasons. Thus, a firefighter who becomes unable to perform the climbing, lifting, and carrying associated with that position could be found disabled under an "own occ" policy, even if he could theoretically work in a less physically demanding profession.
For those receiving LTD benefits under an "own occ" policy, performing part-time or even full-time work in a different profession will usually not affect their receipt of benefits. However, some policies include exceptions to this general rule.
Limits on the amount of LTD benefits. Some insurers have begun inserting terms limiting the amount of benefits they can receive, such as the following:
During your Own Occupation period you can work in another occupation while meeting the Own Occupation definition of disability. However, you will no longer meet the definition of disability when your wages from another occupation meet or exceed 80% of your pre-disability earnings.
This clause means that the disabled firefighter who is able to return to work as a car salesperson and earn at least 80% of his pre-disability salary (his salary or wages on the day before he became disabled) will no longer be eligible for disability benefits.
Return to work incentives. In a similar vein, many LTD policies contain "Return to Work Incentives," which state that individuals found disabled cannot receive benefits and wages that total more than 100% of their pre-disability earnings. If your wages and monthly disability benefit exceed that threshold, your insurer will reduce your monthly benefit until your combined wages and benefits equal your pre-disability earnings. Under some policies, this dollar-for-dollar reduction occurs only during the first twelve months of disability, and continues to a lesser degree thereafter.
Professional services. There is an additional provision found in some "own occ" policies that further limits a person's ability to work while collecting LTD:
If your own occupation involves performing professional services and requires a professional or occupational license, your own occupation shall be as broad as the scope of your license.
This provision means that your own occupation will be defined as any job requiring your same license. In theory, this provision could allow an insurance company to deny LTD benefits to a surgeon who develops a hand tremor, if the insurer can demonstrate that the individual could perform any other job requiring a medical license, such as a medical school professor. How broadly this relatively new provision will be interpreted by insurers and the courts remains to be seen, but keep it in mind if you're considering returning to work in a position similar to your previous one.
The bottom line is that under many "own occ" policies, disabled individuals can work in another profession without affecting their receipt of LTD benefits too much. The contract provisions mentioned above have been introduced only recently into a small number of policies. If you're considering going back to work, review the terms of your policy or consult with your attorney to ensure that you continue to receive your full long-term disability benefits without interruption.
"Any occupation" (or "any occ") long-term disability policies provide disability benefits for those who become unable to perform any occupation for which they are reasonably suited based on their education, training, and experience. Many disability policies transition from "own occ" to the less generous "any occ" standard after a period of 24 months.
The extent to which you can return to work under an "any occ" policy depends on the specifics of your plan, but typically the more you're earning in your new job, the more your LTD check will be reduced. If you're earning less than 20% of your pre-disability income, your disability payment will likely be unaffected. On the other hand, wages of 80% or more of your pre-disability income could terminate your LTD benefits entirely.
Many policies provide for residual or partial disability payments, which allow someone capable of only part-time work to receive ongoing benefits. Earnings between 20% and 80% of your prior income will usually reduce your full LTD amount in proportion to your income. You'll be expected to provide your LTD insurer with proof of your earnings and hours worked on a monthly basis.
Finally, many "any occ" policies offer rehabilitation incentives designed to help disabled individuals get back to work. These programs usually allow those who participate in approved rehabilitation or job-training programs to receive an extra 5% to 10% of their monthly LTD benefits.
If you're collecting long-term disability benefits and thinking about going back to work, make sure you read your long-term disability policy carefully to understand how working will affect your monthly check. Contact your LTD claims administrator or, even better, a long-term disability attorney if you have questions about your policy.
]]>While the Social Security offset strikes many disability claimants as unfair, insurance companies are quick to point out that it helps keep monthly premiums low.
Social Security disability benefits are rarely approved quickly. Unless your disability claim is one of the few approved at the initial level (after your application), you can expect to wait at least a year (often longer) before you're approved. But because the "clock starts running" on your benefits as soon as you file, most Social Security beneficiaries receive a substantial amount of backpay, or past-due benefits, in the form of a lump sum. (In fact, Social Security can pay you for up to 12 months prior to your application date if you became disabled at least 17 months before that date. For more information, see Nolo's article on disability backpay.)
The offset provision in your LTD policy means that your LTD insurance company may be entitled to most or all of this backpay. The rationale is that the company has overpaid you for those months during which you received the full amounts of LTD and Social Security benefits (in the form of backpay).
The insurance company uses the Notice of Award you receive from Social Security to calculate the overpayment. The overpayment is generally the amount of backpay you received minus attorneys' fees (see below). Be sure to double-check the insurance company's math, because mistakes do happen. (Not surprisingly, errors tend not to favor the disabled person!)
Insurance companies typically deal with an overpayment in one of three ways. Most companies require immediate reimbursement of the full overpayment amount as soon as you receive your backpay. Others will agree to reduce your monthly LTD payment until the debt is satisfied. Finally, if you don't pay the overpayment out of your Social Security backpay, insurers occasionally stop paying LTD payments entirely until the overpayment has been repaid, but this option is usually a last resort.
Expect your LTD insurance company to require you to sign a Social Security Reimbursement Agreement, stating that you'll repay any retroactive Social Security benefits to the company. You may also be sent a Payment Option Form offering you the choice to receive a reduced amount of LTD benefits while your Social Security case is pending, so that you don't have an overpayment to pay back with your Social Security backpay. Predictably, almost no one accepts this rather unappealing offer.
If Social Security is paying dependents benefits to your spouse or children based on your disability (often referred to as "auxiliary benefits" in LTD policies), many LTD policies allow the insurance carrier to offset these amounts (subtract them from your LTD payments) as well.
Social Security's yearly cost-of-living adjustment (COLA) is rarely factored into the offset.
Attorneys' fees (typically 25% of your Social Security backpay) are generally not included when figuring the offset, allowing many Social Security disability claimants to obtain essentially free legal representation. (The 25% fee is taken out of your backpay before the insurance company calculates the overpayment.) While your insurer may offer to provide you with an attorney or (more likely) a non-lawyer representative to handle your disability case, it's usually a better idea to hire an experienced, independent disability attorney, especially if you can do so free of charge.
Every policy is unique, so read your policy's summary plan description or contact your insurer to learn how dependents/auxiliary benefits and attorneys' fees can affect the Social Security offset.
In addition to deducting Social Security disability benefits, the vast majority of LTD policies offset other forms of income such as state short-term disability benefits, workers' compensation benefits, and third-party settlements (such as a personal injury award). Common sources of income that are not offset include 401(k) plans, individual retirement accounts, severance packages, stock options, and profit-sharing plans.
Occasionally the amount of a recipient's deductible (offset-able) income, whether from Social Security or other sources, actually exceeds the monthly LTD payment. In these instances, rather than paying you nothing, most policies provide for a minimum monthly benefit of $50 or $100 that a person can collect regardless of the offset amount.
Note that individual disability policies (as opposed to employer-provided group plans) are more likely to be tailored to the individual purchaser, rather than fitting the mold of a group plan. While you'll still find many individual plans with a legion of offsets, a first-class individual plan might not provide for any offsets at all, even for Social Security disability. The wide variation among long-term disability policies makes it essential that you read your plan carefully.
]]>Child support payments are calculated differently in each state. For example, in Maryland, payments are determined using the “shared income” model, which means the children are entitled to the same financial support as if the parents were still married. In a “percentage of income” state, like New York or Texas, payments are calculated using a percentage of each parents’ income, with the higher paid parent bearing greater percentage of the financial responsibility, regardless of whether or not that parent has custody.
You cannot simply stop paying child support regardless of how child support is calculated. If you fail to pay court-ordered child support, you face driver’s license suspension, wage garnishment, revocation of your passport, and even jail time. This means that if you find yourself unable to pay child support because of your disability, you must ask the court to modify your child support payments.
If you are no longer able to maintain your court-ordered child support payments because you are on long-term disability, you should ask the court to modify your child support obligation. The way this is done varies from state to state, but most courts have “self-help” centers that can assist you. Here are some examples of how long-term disability might affect a non-custodial parent’s child support obligation.
Ms. Owens was the non-custodial parent of two minor children. Prior to becoming disabled, she earned $3,000 a month gross. Her former husband, the custodial parent, earned $5,000 a month gross. Ms. Owen’s child support obligation was approximately $595 per month for both children. After becoming injured, Ms. Owen had to quit work and went on long-term disability. Her long-term disability insurance payments were $1,590 a month, which added up to 53% of her prior income. Ms. Owens filed a motion to modify custody, and her support obligation was reduced to $358.
Mr. O’Connor was the non-custodial parent of three minor children. Prior to becoming disabled he earned $4,000 a month gross. The gross monthly salary of Ms. O’Connor, the mother who had custody of the children, was $1,500. Based on these figures, Mr. O’Connor’s monthly child support obligation was $1,385. After Mr. O’Connor became injured, however, he went filed a long-term disability insurance claim. His gross monthly income was reduced to $2,120. Based on the decrease in his income, Mr. O’Connor’s obligation was modified to $835 a month.
Remember that these examples show estimates only. You should speak to a lawyer or contact your local court if you have questions.
If you are the custodial parent and your income decreases because you go on long-term disability, you can ask the court to increase the non-custodial parent’s financial obligation. Here are some examples using the same facts from the examples above.
Mr. Smith, the custodial parent of two minor children, earned $5,000 a month gross. Ms. Smith, the non-custodial parent, earned $3,500 a month and was required to pay $258 a month in child support. After an injury, Mr. Smith went on long-term disability and his income was reduced to $3,000 a month. Mr. Smith filed a motion to modify the child support obligation, and Ms. Smith’s child support obligation increased to $517 a month.
Ms. Culbertson was the custodial parent of four minor children. She earned $4,500 a month gross. Mr. Culbertson, the non-custodial parent, earned $6,000 a month gross and was obligated to pay $1,899 a month in child support. Ms. Culbertson became ill and began to get long-term disability, so her monthly income was reduced to $2,000. She filed for a modification of child support based on her change in income, and Mr. Culbertson’s child-support obligation was increased to $2,120.
Remember that these examples show estimates only. You should speak to a lawyer or contact your local court if you have questions.
The laws regarding whether or not alimony (spousal support) can be modified vary from state to state. Many state divorce laws prohibit modification where the agreement specifically states that the alimony is non-modifiable. This means that unless you can come to an agreement with your ex-spouse, you are unlikely to succeed in asking for a modification based on the long-term disability.
If your settlement agreement doesn’t specifically prohibit the modification of alimony, however, you may be able to ask for a decrease (or increase) in spousal support. Courts will usually consider whether unforeseen circumstances, such as disability or job loss, would create a hardship on the party seeking the modification.
If your settlement agreement contained an “express waiver of alimony” provision, you will probably not be able to ask for alimony regardless of the financial hardship caused by your long-term disability.
State laws differ on alimony and how long-term disability may, or may not affect a person’s right to, or obligation to pay, alimony. You should contact your local courthouse or contact an attorney who specializes in family law if you have specific questions.
]]>ERISA outlines specific procedures that disability claimants must follow in applying for benefits and filing appeals. Individual LTD policies are simply contracts between LTD carriers and individual policyholders and are governed by state insurance law.
There are many other differences between ERISA and individual policies, including the costs of premiums, portability of coverage, taxation of benefits, and process of appeals. It's important to keep these differences in mind whether you're shopping for a policy or thinking about filing a claim.
Most long-term disability policies are provided by an employer who also pays the monthly premiums. Those who don't receive coverage through their employers, or who wish to supplement their employer-provided coverage, can purchase individual policies.
Group policies are generally less expensive but provide more basic coverage. Individual policies can be tailored to an individual's specific needs and generally offer a higher quality of coverage.
Perhaps the most important provision of any long-term disability policy is how it defines disability. Under many group plans, you're disabled only if you're unable to perform any occupation in the economy. Other group plans define disability as the inability to perform your own occupation, but then the definition shifts to "any occupation" after 24 months. This narrowing of the definition frequently results in people's LTD benefits being terminated after only two years. Individual policies, on the other hand, can be "own occupation," "any occupation," or a hybrid of the two, according to the wishes of the person buying the policy.
Virtually all ERISA and individual plans contain restrictions on disability claims based on mental or nervous disorders or substance abuse, often limiting payments to 12 or 24 months. If you're purchasing an individual policy and wish to be covered for conditions such as depression, anxiety, fibromyalgia, or chronic fatigue syndrome, some carriers may be able to accommodate you in exchange for an increased premium.
How much you'll receive in monthly benefits may also differ between ERISA and individual policies. Group plans usually provide benefits equal to 50% to 75% of your pre-disability income, often with a cap of $5,000 or $10,000 per month. Individual policies may allow you to collect a greater percentage of your salary with a higher monthly maximum.
One of the great features of individual LTD policies is their portability, that is, their ability to travel with you from one job to the next and even to survive periods of unemployment. Group LTD coverage, in contrast, is terminated when your employment relationship with your current employer ends.
The COBRA regulations that might allow your health insurance to continue for a short time after you've been laid off do not apply to LTD insurance. If you try to file for long-term disability benefits after leaving your job, you'll probably find that you're no longer covered. This is important to remember if you're considering filing a disability claim and are having difficulty continuing to work.
Individual policy premiums for long-term disability are typically paid for with a person's after-tax dollars and the LTD benefits are received tax-free. The converse is usually the case with group plans: employers pay the premiums with before-tax dollars, but the LTD benefits are taxed to the recipient as ordinary income.
Administrative appeals. If your ERISA claim has been denied by your LTD insurer or plan administrator, you must exhaust your plan's internal appeals process before filing a lawsuit in federal court. This means you must first ask your insurance company to review its decision (called an administrative appeal) before you can sue. Individual LTD policyholders need not exhaust their administrative appeals before filing a lawsuit and may present new evidence in court during the lawsuit.
State vs. federal court. Individuals may sue in state court for breach of contract, negligence, bad faith, or other causes of action. Unlike ERISA cases, which are decided by a judge, individual LTD policyholders are entitled to a jury trial.
If you have a group LTD policy covered by ERISA, you'll have to sue in federal court. Pay special attention to all filing deadlines for administrative appeals, as missing even a single deadline could be considered a failure to exhaust your internal appeals. This could prevent you from being able to sue the insurance company in federal court.
Also, you should know that ERISA law makes it very difficult to introduce new evidence in federal court, so be sure to submit all relevant evidence regarding your claim to your insurer during the course of your administrative appeal. (Read Nolo's article on stacking the record for an LTD appeal for more information.)
Standard of review. The standard of review applied by courts may also be different depending on whether you have group or individual coverage. Under ERISA, the actions of insurers and plan administrators are often evaluated under a lenient "abuse of discretion" standard -- that means that, unless the insurance company's decision to deny you benefits was wholly unsupported by the evidence, or clearly incorrect, the federal judge cannot overturn the decision.
Insurance carriers are not given the same benefit of the doubt under the state laws that apply to individual policies. Instead, the state judge or jury will look to whether the insurance company fulfilled its promises to you under your LTD contract.
Money damages. Under ERISA the court can award you damages only for the amount of back benefits you should have received, plus interest, while individual policies allow you to recover compensatory damages and punitive damages. Occasionally, the insurance company will be forced to pay your attorneys' fees. Read Nolo's article on long-term disability attorneys' fees for more information.
]]>Many LTD policies shift from requiring that you can't work in your "own occupation" to requiring you to be unable to work in "any occupation" after a certain period of time, often 24 months.
What does it mean to be unable to perform "any gainful occupation" for which you are "reasonably" suited? Who makes this decision, and based on what evidence? This article aims to remove some of the mystery from these poorly understood provisions of "any occupation" LTD policies.
In general, a "gainful" occupation is one that is able to provide you with at least 60% of your pre-disability wages. What this means is that, before an insurance company denies a disability claim (or terminates disability benefits) under an "any occupation" plan, the insurer must demonstrate that the insured, considering his educational and vocational history, can reasonably perform some job that would pay him 60% of his prior earnings.
The 60% figure is typical but not universal, so be sure to check the specifics of your policy. Some policies will pay out if you have a 20% or higher loss in earnings, meaning that a gainful occupation is one that provides you with at least 80% of your pre-disability wages.
Consider the case of a plastic surgeon who contracts a disease that causes tremors in her hands. Assuming her condition was documented by medical evidence, she would almost certainly be found to be disabled under an "own occupation" policy, as the job of surgeon requires fine motor skills. Whether she would qualify for benefits under "any occupation" plan is a more difficult question, one that depends upon her prior salary, her ability to perform other jobs, and how much she could expect to earn at those jobs. If the surgeon's pre-disability earnings were $300,000 per year, her insurer would have to show that she reasonably could earn at least $180,000 per year (60% of $300,000) at another occupation before denying her claim.
You must be reasonably suited to perform a gainful occupation, based on your location, your skills, your education, and your limitations. As used above, the word "reasonably" is open to interpretation, as is the case so often in law. Here are a few factors that could make an occupation "unreasonable" for you to perform:
LTD insurers often work with vocational experts (VEs) to establish that there are "other jobs" out there that individuals can perform, and the compensation associated with those jobs. A VE is an individual well-versed in the specifics of the labor market and often has experience placing disabled individuals in occupations. They rely on a number of sources for their opinions, including the Bureau of Labor Statistics, the (outdated) Dictionary of Occupational Titles, and surveys of employers.
As with medical and many other kinds of "experts", vocational experts often disagree with one another. With occasional exceptions, a VE employed by an insurance company is more likely to find that a disability applicant could obtain gainful employment. Attorneys who handle LTD cases frequently hire their own VEs, many of whom have biases in the opposite direction.
An experienced disability attorney will be adept at cross-examining a VE who works for the insurance company (via written interrogatories or a deposition). Likewise, a disability attorney can elicit helpful testimony from a VE who is favorable to your case.
Although VE testimony can be critical to whether you are granted or denied benefits, ultimately it is the claims administrator at your insurance company or the plan administrator who makes the final decision as to whether your claim is approved or denied. While many claims administrators will be more likely to credit the insurer's VE than the one a disability attorney hires and deny you benefits, having favorable VE evidence in the administrative record is crucial on appeal, especially if you plan to file suit in federal court.
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