Questions about short term to long term disability ... How does it work? Will I still get it even if i lose my job?

Asked almost 2 years ago - Kissimmee, FL

I was in a car accident Dec 2011. I have missed alot of work due to my injury and also back surgery that I had Sept. 5 2012. I have already used up all my FMLA, and am now on an extended medical leave which will come to an end on Dec 17 2012. Currently I am on a short term disability and come Dec 5 2012 my long term disability should kick in automatically. NOW my question is.. If I am unable to return to work after the 18th, my HR rep says that I will be taken off of payroll. What does that do to my Long term disability? WIll that stop because I am unable to stand at my job? My position is standing on concrete in all weather. My back is at it's worst when I am on the concrete. I have had surgery, am currently recovering and am worried about how I am going to take care of my bills.

Attorney answers (2)

  1. Stephanie Ann Taylor

    Contributor Level 3

    2

    Lawyers agree

    Answered . I agree with Mr. Bordelon's answer. I would add that how you proceed would depend on whether your short-term disability (STD) and long-term disability (LTD) insurance is through your employer or private insurance that you purchased on your own. Generally, if your STD and LTD is provided through your employer, the Employee Retirement Income Security Act (ERISA) governs your claim. There are some exceptions, e.g. 1) you are employed by a governmental agency/entity or 2) the STD/LTD plan is voluntary and you pay 100% of the premiums. ERISA is very strict - with very short deadlines. Under ERISA, if your disability claim is denied, you will only have 180 days to appeal the denial to the plan administrator with all additional evidence you want them to consider. Generally, ERISA does not allow you to present additional evidence of your disability in court as the judge will only look at the evidence considered by the plan administrator prior to their final denial. If you do not appeal within the 180 days and later try to file suit, the court will most likely dismiss your case for failure to exhaust your administrative remedies. Be very careful if your claim is governed by ERISA. I would recommend that you speak with an attorney immediately if your LTD claim is denied.

    Also, most LTD policies pay benefits for the first 2 years if you are unable to perform your "regular employment" which is roughly defined as your current job title as performed in the industry - not just your particular job with your employer. If you continue to be disabled more than 2 years, LTD insurance will usually only pay you benefits if you are disabled from performing all work for which you are or become qualified through education, training and experience. So, most likely, you would be eligible under your LTD policy for 2 years if you can not stand for long periods and your job requires that. Beyond the 2 years would depend on all of your limitations and what type of job if any you can perform.

    If you purchased a private disability insurance policy in Florida, the laws are much more favorable to you and if you need to file suit, part or all your attorney's fees and costs are often paid by the insurance company if you prevail in the lawsuit.

    Make your that you have a complete copy of either the insurance plan or policy, any certificate of insurance and if the STD/LTD is governed by ERISA, also make sure that you have the Summary Plan Description. These documents govern your rights and responsibilities.

    The Social Security Administration (SSA) looks at several "vocational" factors (e.g. your age & education) in additional to your medical conditions and limitations related to those conditions. I recommend as well that you immediately apply for Social Security disability insurance benefits. They will usually deny your initial application even if you ultimately qualify for benefits. You should always appeal that denial and have 60 days from the denial to do so. If you go back to work, the SSA allows for a trial work period and will continue benefits if you are unable to return to work for more than 6 months. Basically, you are not penalized for trying to work. if you return to work and feel that you no longer need Social Security Disability benefits, you can always dismiss your application.

  2. Jeremy Lyle Bordelon

    Pro

    Contributor Level 15

    2

    Lawyers agree

    Answered . If you have used up all your FMLA, and your employer won't grant you any more medical leave, then they have the right to terminate you. You would no longer be considered an "employee," and you wouldn't have a job to go back to if you recover from your injuries. However, that should not affect your LTD claim at all. Because you became disabled while covered under the LTD plan, your claim should be considered by the LTD carrier, and approved or denied based only on the medical evidence, not based on your current employment status.

    If you believe you're going to be unable to work for more than a year in total, you should probably consider filing for Social Security disability as well as LTD. If you are denied for STD, LTD, or Social Security disability, you should contact an attorney immediately. I do not recommend trying to deal with the LTD company on your own if they deny you. You will want to speak to an attorney before you appeal their denial, if they ever deny you. That said, here's hoping they just approve your claim, never cut you off, and that you recover soon! Best of luck.

    Jeremy Bordelon is a licensed attorney in the State of Tennessee only, and is authorized to practice in all... more

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