Written by attorney Ruth Ann Silver-Taube | Jul 8, 2012



Written by Ruth Silver Taube

Eligibility for Long Term Disability Benefits

Determine whether your company offers long term disability benefits. Long term disability benefits typically pay 60% to 2/3 of your monthly salary. Eligibility requirements for long term disability benefits are described in the Summary Plan Description (SPD). The SPD or summary plan description is the benefit booklet outlining all your benefits. The employer must provide it to you within 90 days after you become eligible for benefits. 29 C.F.R. 2520.104b-2.

You should request a copy of the plan. ERISA 502(c), 29 U.S.C. 1132(c) provides for penalties of $110 a day for a plan administrator's refusal to provide the plan to you within 30 days after a written request.

The plan may have a preexisting provision which states that you are not eligible for benefits if you become disabled during the first 12 months of coverage for a preexisting condition for which you received treatment within a certain number of months (often 3 months) before you became insured. For example, if you have only been covered by the plan for 9 months when you apply for LTD benefits, and you received treatment within the 3 months before you were covered by the plan, you won't be eligible for benefits.

You can usually file a claim for long term disability benefits even if you are receiving Workers Compensation or Social Security Benefits. Workers Compensation benefits and Social Security benefits are offset or subtracted from the amount of long term disability benefits you receive.

You are typically not eligible for long term disability benefits if you can perform your occupation for another supervisor since the plan definition of disability is usually the inability to perform the material and substantial duties of your own occupation for any employer not just your own supervisor. Make sure your doctor doesn't state that you can work for another supervisor.

Beware the Mental Nervous Disorder Trap

Most plans provide for only 2 years of benefits if the disability is from a mental or nervous disorder. Benefits for a physical disorder are typically until you are 65 as long as you remain disabled. You can avoid the mental/nervous limitation by claiming that the mental condition is secondary to the physical condition or the physical condition is independently disabling in cases where there is a physical condition and depression/anxiety. For example, if you have multiple sclerosis and are depressed, you can state that you are only depressed because of the multiple sclerosis and that, even if you didn't have the depression, you would be disabled from the multiple sclerosis.

Timing of Claim Decision

The plan has 45 days to review the claim and may be take two 30 day extensions. 29 C.F.R. 2560-503-1(f)(3).

Winning Your Appeal If Your Claim Is Denied

If your claim is denied you must be offered 180 days in which to make an appeal. You should request a copy of your claim file including all medical records, reports, and reviews. The plan usually sends your medical records to a reviewing doctor, and you will need a copy of his or her report to provide to your doctor for rebuttal. You should also obtain independent medical, vocational, neuropsychological, and functional capacity evaluations to support your claim. You should obtain legal counsel who will take your case on a contingency fee basis, advance costs for these independent examinations that will support your claim, and prepare your appeal.

Additional resources provided by the author

29 U.S.C. C.F.R. 2560.503-1(j) - 29 C.F.R. 2560-503-(j)(4)(Content of Denial Letter)

Rate this guide

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer