Considering Filing for Long-Term Disability?
Do Not File for Long-Term Disability Before Reviewing These Factors!
Despite paying premiums for years, many disabled persons are at a loss in regard to the factors involved in applying for long-term disability benefits. Most have almost no idea what is included in their policy. However, there are significant nuances within disability policies and other factors that merit consideration before application. This article discusses what we believe to be the most significant of these factors.
1. Understand the structure of your policy.
Most policies have a 3-6-month Short-Term Disability policy for which a claimant must initially submit an application. Once these benefits are exhausted, the claimant must apply for the Long-Term Disability portion of the plan. Attaining long-term benefits is generally a more stringent process than the short-term disability process.
The initial term of the policy, usually 24 months, is referred to as the “Own Occupation” portion of the plan. After that term has expired, to continue benefits, the claimant must meet the tougher “Any Occupation” definition of disability to continue to receive benefits. If the claimant is able to work in any field within his or her knowledge, skills and experience and the occupation pays within the range of the benefits offered, then it is considered a transferable occupation.
The matter is not over after the insurer grants benefits. The insurer has a right throughout the life of the policy to continually monitor your condition(s) and monitor you (i.e., your activity, your income etc.). The insurer may end coverage generally at any time it no longer is of the opinion the insured meets the criteria for disability.
Most policies naturally terminate at the claimant’s retirement age, either age 65 or the full Social Security Retirement Age for the individual claimant.
2. The Elimination Period.
The elimination period is the amount of time the applicant must wait from disability onset until benefits are paid. Policies have varying elimination periods, but usually 30 to 180 days. Many long-term policies require that you exhaust all short-term benefits to be considered to have met the “elimination period” that is required before long-term disability benefits will be paid. In short, denial of the short-term disability benefits will prevent the payment of long-term benefits.
3. Look at the Pre-Existing Condition provisions in the policy.
If a claimant has been covered under a policy for only a short period of time, usually less than one year, the policy will have a “look back period” in which the insurance carrier will look for pre-existing conditions, which will not be covered conditions. It is important to review the policy for this possibility before filing your disability application as the timing of the claim could be of great importance in the application of the policy’s pre-existing condition exclusion.
4. Know what medical conditions are excluded or have limited benefits.
Most policies limit or totally exclude the payment of benefits for certain types of medical conditions. It is common for disability policies to limit benefits to only 24 months for disability based on mental conditions, soft tissue injuries (without radiculopathy), fibromyalgia or other conditions that are based on self-reported symptoms. It is important in filling out the initial application to avoid basing the claim for disability on these limited or excluded conditions if at all possible.
5. Understand offsets in the policy.
Most policies will offset or subtract from your monthly insurance benefits “other” income that you may be entitled to from other sources. Most frequently this means the claimants’ Social Security Disability benefits but can also include early retirement or pension benefits. It may be worth considering deferral of retirement or pension benefits, if possible. This does not include Social Security Disability benefits.
6. You will have to file for Social Security Disability.
Practically all disability insurance policies require a claimant to file for Social Security Disability benefits within 12 months of disability. The reason is obvious, the insurance company gets to offset or subtract the SSD benefits from what they owe you.
7. Understand the benefit payment percentage and base pay.
Most policies base your monthly benefits on your base salary and not bonuses or commissions. This varies greatly from policy to policy, but you need to understand how salary, bonuses and commissions are defined and calculated if your income is based on them. Generally, policies will pay 60-70% of pre-disability base pay as the benefit amount.
8. Review your medical records and get your doctor on your side.
Before you apply it is best to consult your most relevant specializing doctor to determine if he or she is in support of your application for disability. A primary care physician’s opinion will not hold as much weight as a specialist. Without this support you will find it very difficult, or impossible, to get benefits. You must have well documented records of your diagnosed medical conditions and opinion evidence from your doctors as to your functional limitations that naturally develop from your medical conditions. Your doctor should be able to cite to objective medical evidence in support of his or her findings. Your doctor will need to complete forms and/or be interviewed on multiple occasions to support your disability claim.
9. Find your occupation in the Dictionary of Occupational Titles and identify occupational restrictions.
Your doctor identifies restrictions, but a vocational or occupational expert identifies whether those restrictions limit you from achieving the duties of your occupation. During the initial “own occupation” term of your disability claim, it is critical that you have a written job description that describes all physical and mental requirements of your “own” occupation.
From the occupational perspective, every occupation must be categorized into the Department of Labor’s Dictionary of Occupational Titles. This manual lists the physical and mental requirements of every occupation in the economy. It is critical to the success of your claim that your doctor’s description of your functional limitations clearly shows that you can no longer meet the specific physical or mental requirements of the occupation. If your restriction is not one categorized within the Dictionary of Occupational Titles (such as sitting restrictions, need for breaks or time off), you may have to retain an occupational expert to obtain an opinion on disability.
10. Pick your onset of disability date wisely.
When filing for disability, you will be required to state the date that you became disabled. This can be important for many reasons. First, it can matter if there is a question of a preexisting exclusion. Second, it can matter to avoid certain limitations and exclusions in the policy. Third, the onset of disability date must be alleged to be during a period while insurance coverage is in effect. Claimants often struggle with the decision to declare themselves disabled. If it is possible to time your claim for disability, it is best to have an experienced attorney look at these issues before you make your disability claim.
11. Focus your application on your medical conditions and functional limitations that are not subject to limitations, exclusions or pre-existing limitation exclusions.
The reasons should be obvious, but you want to make sure you maximize your chances of success, so don’t blow it in the application. One example of this is the prevalence of depression and anxiety amongst the disabled population. This is considered secondary, and you should focus your application on the primary underlying physical condition.
12. Give honest and complete responses to questions.
When describing your physical limitations, avoid using absolutes like “always” and “never.” Statements like “I can never lift 10 pounds,” or “I always require a cane to walk,” can easily be contradicted. Once you are contradicted, either in your medical records or on video, you are branded a liar and nothing you say will be believed. Instead use words like “frequently, sometimes, occasionally or seldom.”
At the same time, do not feel you are limited to yes or no answers or responses to loaded questions. Do not be afraid to answer something other than one of the pre-designated multiple-choice answers listed or to add additional explanation on attachment sheets. The truth is disability is often complicated; sometimes with good and bad days.
13.Warn your doctors that they may be getting communications from the insurance company.
You must prepare your doctors for the requests that the disability insurance carrier is about to make. Often, they will require your doctor to complete monthly disability forms. One missed form can lead to a claim denial. The insurance carrier will also want to talk directly to your doctor. Likewise, if possible, have your doctor’s office forward a copy of its responses to you before they are sent to the insurer so that you may fix mistakes or clarify issues.
14. Be prepared for video surveillance and a lot of calls and forms.
A favorite tactic of disability insurance carriers is hidden video surveillance, especially if you are going to your doctor or going to the grocery store. They are trying to catch you doing something that you stated you can’t do. Also, the carriers will call randomly to interview you while you are off guard. Understand you have the right to refuse a random call and ask them to schedule a time that is convenient for you. Also, while they may tell you this beforehand, all phone calls are recorded.
You will have to complete seemingly endless paperwork while you are on the claim. It may seem harassing, but if the claimant refuses this it is grounds to deny the claim. It is a common tactic for the insurer to claim it didn’t receive a particular form. It’s a good idea to send correspondence in a fashion that you can prove was sent (certified mail, email, fax) by the deadlines established by the insurer.
If you find yourself in the position of considering application for long-term disability benefits and are not sure of the next step to take, please do not hesitate to contact The Schipper Law Group or call us at (248) 729-2414. We have assisted hundreds of clients in getting the benefits they deserve and would be happy to help you.
