Answers to Frequently Asked Long-Term Disability Questions
The long-term disability claims process can be difficult and confusing, leaving you with more questions than answers. Visit our FAQs to get the information that you need to succeed in your claim or lawsuit.
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Do I have to go through the administrative appeal?
Yes. Under ERISA and federal law, you must exhaust your administrative remedies. That’s a fancy way of saying that you must follow the process. If you are denied by the insurance company, you have to appeal first to the insurance company again for the administrative review. If you are still denied, then you can take the matter to court.
However, if you try to skip the administrative review and go directly to court, the court will most likely say that you failed to exhaust your administrative remedies and can dismiss your appeal.
How long do I have to appeal a denial?
The answer depends on where in the process the denial was rendered. If you were denied by the insurance company, either initially or after receiving benefits, you generally have 180 days from the date of the denial to request an administrative review. If your administrative review resulted in a denial, you may have up to three years to bring a federal court claim depending on the statute of limitations for similar claims in your state. For example, in Louisiana, I want to bring a long-term disability denial case to federal court within one year from the administrative denial.
What is ERISA?
ERISA stands for the Employee Retirement Income Security Act of 1974. ERISA is a federal law that sets minimum standards for retirement and health benefit plans in private industry. ERISA does not require any employer to establish a plan. It only requires that those who establish plans must meet certain minimum standards.
ERISA covers retirement, health, and other welfare benefit plans (e.g., life, disability and apprenticeship plans). Among other things, ERISA provides that those individuals who manage plans (and other fiduciaries) must meet certain standards of conduct. The law also contains detailed provisions for reporting to the government and disclosure to participants. There also are provisions aimed at assuring that plan funds are protected and that participants who qualify receive their benefits.
Because ERISA is a federal law, and your employee benefits plan is governed by it, any dispute you have with your long-term disability insurer will be heard in federal court and not by your local state court.
Who decides if I am disabled?
Unfortunately, the long-term disability insurance company makes the decision on whether or not you are disabled. They have this power because the United States Supreme Court has ruled that the insurance company can reserve to itself the discretion to make such decisions. After the ruling, all long-term disability insurance companies reserved the power to themselves.Thus, even though you may have a favorable doctor’s opinion, or several, and other supporting documentation, do not be surprised to receive a denial. Why? In the face of such documentation, the long-term disability insurer will often have their internal company doctors, or their own consulting doctors, render an opinion on whether or not you can work with your ailment or whether or not you are truly suffering from your ailment. In the insurer’s discretion, they can decide to rely on this one opinion from a doctor who never treated or examined you and deny your claim.
What is an elimination period for disability?
An elimination period is the amount of time you must be disabled under a disability insurance policy after filing the claim and prior to receiving benefits.
It is the length of time between the date of the beginning of a disabling injury or illness (also known as the onset date) and the day you can begin receiving benefit payments from an insurer.
It can also be known as the waiting period or deductible period.
Elimination Period for SSDI
The elimination period for Social Security Disability is 5 months.
Elimination Period for Short-Term Disability
For a short-term disability policy, the elimination period is generally 0-14 days.
Elimination Period for Long-Term Disability
Many long-term disability policies have a 90-day elimination period, but other periods do exist. Some are 180 days, and others can be much more.
Generally, a long-term disability policy with a longer elimination period will cost less. However, if you should become disabled, you will have to go a longer period before payment can begin.
The length of your elimination period can be found in your policy.
Remember, you will not get any benefits for the duration of the elimination period, even though you are disabled.
What is a substantial and material duty?
These are the duties required for the performance of your regular occupation that cannot be reasonably omitted or modified. For example, if you are a truck driver and we removed sitting for long periods from your job description, your occupation would no longer be considered a truck driver.
- Material duties are subjective tasks specific to a particular occupation. For example, a salesperson must have the ability to communicate with a prospective client. If this subjective task (“communicate”) is removed from the job description, the description would no longer describe a salesperson.
- Substantial duties are objective tasks required for the completion of a specific occupation in the course of an 8-hour day. For example, if you are a process operator, substantial duties may include sitting for 40% of the time and standing for 60% of the time.
A rule of thumb in determining whether you are unable to perform the material and substantial duties of your occupation is to determine whether or not you are able to do those things that comprise at least 20% of your workday. For example, if you are a computer programmer but can only type for 15 minutes out of every hour, then you cannot perform your occupation. It is incredibly important to know your job description before filing a long-term disability claim.
If you have a question about the material and substantial duties for your job and how they may affect your long-term disability claim, give us a call at 985-240-9773.
What Is The Any Occupation Review?
You have been receiving long-term disability benefits for about 12-18 months and then you receive a letter from the insurance company that says something like this:
According to the provision of your group policy, in order to be eligible for LTD benefits you must meet the following definition of disability:
Total Disability or Totally Disabled means you are prevented from performing the Essential Duties of:
1) Your occupation or a reasonable alternative job offered to you by the employer during the elimination period and for the 24 months following the elimination period; and
2)After the 24 month period, Any Occupation.
Your LTD benefits became effective 12 months ago. To continue receiving benefits after 24 months, you must be disabled from any occupation.
Please be advised that we have initiated an investigation to determine if you will qualify for benefits after the 24 months have elapsed. We will notify you regarding our determination.
What exactly does this mean? You were granted disability benefits because you couldn’t work. You still cannot work. What is the insurance company talking about here?
Almost all (at least that I have seen) employer-provided long-term disability policies have a change in the definition of disability after you have been receiving disability benefits for 2-years (or 24-months). I have seen some that change after 1-year (or 12-months).
The change is that you must be disabled from performing any occupation instead of just your own occupation.
This is a major change.
For example, if your occupation was a truck driver at a light-medium exertional level, your back injury may qualify you for long-term disability benefits initially. When the definition changes, the question is does your disability prevent you from doing ANY OCCUPATION – such as clerical work, inventory work, or other sedentary type occupations.
The disability company understands that if you are entitled to benefits after this point in time, then chances are you will be receiving benefits for a long time. The disability company does not want this. The “any occupation review” is done by the long-term disability insurance company at or around the time the definition of disability changes in your policy. The change in definition gives the insurance company an opportunity to deny perfectly valid disability claims under the guise of the claimant being able to perform some type of occupation. In doing their “any occupation review,” the insurance company will often use a vocational expert (VE) to opine on whether or not with your disability you can perform the substantial and material duties of another occupation.
In some policies, the definition requires that you be suited for the occupation by age, education, training, or skill while others require that the occupation results in you earning, at least, a certain percentage of your pre-disability gross income. However, many policies place no restrictions on the type of occupation the insurance company can say you are qualified for.
You can expect to receive a number of documentation requests and/or interviews in the months leading up to your 24th disability payment. They all have one purpose — finding out what you can do so that they can get you off of claim, and/or bombarding you with so many requests that you may fail to turn one in and then your claim can be dismissed.
You will be faced with a completely new inquiry into your disability. Basically, you will have to prove your disability again, but probably to a more detailed level.
You will probably need to collect additional evidence of your disability and of your inability to perform the tasks the disability company now claims you can do.
If you are lucky, the definition of disability in your policy will give you some added protections – such as you must be able to earn a certain percentage of your pre-disability earnings.
It is important to maintain a good relationship with your doctor. Keep your journal/diary up to date. Make sure your family and friends know of your continued disability and can support your claims if needed.
The unfortunate truth of the "any occupation review" is that many claimants are found by the disability insurance company to be capable of performing, at least, one occupation. Because of this, continued long-term disability benefits will be denied.
If you are faced with an Any Occupation Investigation or Denial, you do not have to fight the insurance company alone. Mandeville long-term disability claimants faced with such a denial can call me for help.
Successfully appealing any occupation denials takes creativity, hard-work, and a detail-oriented approach. If you live in Kenner, or anywhere in Louisiana, and are faced with an Any Occupation long-term disability denial, I may be able to help you. Give me a call at 985-240-9773 or use our simple contact form.
What's the difference between Short-term and Long-term Disability?
As a Louisiana disability lawyer, I have been asked to explain the difference between short-term disability benefits and long-term disability benefits on more than one occasion. This is my attempt to explain the differences and similarities as briefly as possible.
Short-term disability insurance is designed to pay you benefits quicker and for a shorter period of time. The elimination period (the period of time you must be disabled before benefits start) in a short-term disability policy is often from 0-14 days. This means that a short head cold would probably not qualify you for short-term disability. The benefit period usually ranges from 60-180 days (or 2-6 months). This means that you will be paid, if you are disabled, for that period of time.
The universe of ailments and injuries that can qualify you for short-term disability are greater than those for long-term disability because of this. For example, while a broken arm may not last long enough for you to claim a long-term disability, it could qualify you for a short-term disability benefit. For this reason, a short-term disability policy may be referred to as a sick-leave policy.
Short-term disability policies do have terms, conditions, and exclusions that you must be aware of. The number of policies and differences makes it impossible to point them all out here. For this reason, you need to read the policy.
Long-term disability insurance policies, on the other hand, are designed to replace a portion of your income over a longer period of time. For this reason, their elimination period (long-term disability waiting period) is usually longer – often 90-180 days (but policy specific). This means that you will not get paid for the first 3-6 months of your disability. Long-term disability policies can pay you a benefit for a very long time, as long as you are disabled – usually up to a certain age, like 65.
The policy terms, conditions, and exclusions of long-term disability policies are often more onerous (bad for you) than short-term disability policy conditions. Also, because the benefit period is substantially longer, insurance companies carefully review and manage their long-term disability claims.
Going from Short-Term Disability to Long-Term Disability
I should also point out that just because the insurance company approved your short-term disability benefits does not mean they will approve your long-term disability claim. Long-term disability claim denials are common for those coming from short-term disability.
From a legal perspective, I do not see many short-term disability disputes but they do exist. Long-term disability insurance disputes are more common. However, the legal principles applying to reviewing decisions of the insurance company under both short and long-term disability insurance are the same – if the benefits were provided by your employer. There may be a difference if you get one benefit through your job but paid for the other separately.
I hope this brief explanation cleared up some confusion. If you want to discuss your short-term or long-term disability case, call me at 985-240-9773 or use our contact form.
When Should I Stop Work If Applying For LTD?
There are a few reasons why the date that you can no longer work due to disability is important. Two very specific reasons are:
- It impacts coverage; and
- You may not be disabled.
In our previous installment, we talked about pre-existing conditions, waiting periods, and effective dates of coverage. Those are important topics to understand when you and your doctor are determining that you can no longer work.
- Are you sure that you are covered under your employer’s long-term disability policy?
- Did you fill out your election timely and has the waiting period passed?
- Are you beyond the pre-existing condition exclusion?
- These are just a few of the questions that impact whether or not you have coverage and are entitled to benefits at the time you can no longer work.
If you have been following along, you know the importance of having your doctor diagnose your disabling condition.
You also know that your policy contains a specific definition of disability. To get benefits under the policy, you must be disabled according to the definition. Most definitions will require that you could no longer work because of a disability.
Unfortunately, some people stop working BEFORE their doctor diagnoses a disabling condition. When that happens, the person will have no medical proof of a disability until AFTER they stopped working. Sometimes, people file without any medical support.
The long-term disability provider will have an easy decision – that person decided to stop working (quit). The person cannot prove that a disability caused their inability to work. Why? Because they have no medical opinion saying so. The medical opinion only comes after the decision to stop working.
A good example here is the chicken and the egg. You know the one – which came first, the chicken or the egg?
While there is no clear answer on the chicken or the egg, in long-term disability settings there is. You must have a doctor’s opinion and medical proof of disability BEFORE stopping work and filing a claim.[Just for the record – the chicken came first]
You should only stop working after you are certain that you are covered under the long-term disability policy, and you have adequate medical support and documentation. And not before.
Good luck. And, remember the things you need to know before you file your long-term disability claim. If you need help filing a disability claim or appealing a denial, we're here to help. Give us a call at 985-441-3448.