LEGAL GUIDE
Written by attorney Scott Ivan Fegley | Feb 10, 2011

Pitfalls of the Disability Benefits Application Process

Taking the time to properly prepare and support an application for disability benefits can mean the difference between a timely approval and months of delays and appeals. Simply stating you have a disabling medical condition and providing a few records from your physician is not likely to convince an insurance company to pay you, especially if your condition is a mental illness, back injury, or some other impairment which is not obvious.

Short term disability (STD) is somewhat less onerous than long term disability (LTD). Still, be sure to provide records, or even better, a letter from your doctor stating not only what your disability is, but how it prevents you from doing your job.

When you receive your LTD benefits application, you may have already been on some type of extended leave, either Family & Medical Leave or short term disability. Too often, the employer is eager to rid itself of what it perceives as an unproductive worker and may push you towards leaving your job and applying for long term disability. They will not always tell you that it is the insurance company's decision whether to pay you benefits, and the insurance company may have a different view of whether you are "totally disabled." Unfortunately, some employees resign prematurely expecting to receive LTD benefits and then find themselves without any income at all.

So before you apply for LTD benefits, consider whether there are any steps your employer can take to accommodate your disability and help you continue working. These accommodations may be an adjustment of your hours, reassignment of minor tasks, providing you certain equipment (for example, a hands-free telephone headset for someone suffering from neck pain), or even a short period of additional leave after Family & Medical Leave has been exhausted. There is no exclusive list of accommodations, so be creative and seek your doctor's input. However, an employer has no duty to accommodate an employee who does not ask for help even if the employer is aware of the disability. So don't be reluctant to ask for help! You don't have to use magic words or cite the Americans With Disabilities Act. Just tell your employer "I have a disability and I need help."

Once you ask for help, it is then the employer's responsibility to engage in an "interactive process" with you to find an accommodation that works for both of you. If you leave your employment without asking for help, the employer will not be at fault for not offering help and will not have to rehire you if your application for LTD benefits is denied.

As the interactive process implies, it is a two-way street. Both parties have to look for solutions and be reasonable. Asking a small employer to install an elevator in a two-story building so you don't have to climb stairs may be unreasonable and a hardship for the employer, but asking to be relocated to an office on the first floor is not. Whether a particular accommodation is reasonable will depend on the circumstances of each case and, ultimately, may be up to a jury if the parties cannot agree. However, an employer's refusal to engage in the interactive process at all is a clear violation of a disabled employee's rights under the Americans With Disabilities Act.

If the employer works with you and provides a reasonable accommodation that enables you to keep working, then the goals of the Americans With Disabilities Act have been fulfilled and you won't need to fill out any applications for disability benefits.

Your effort to reach a reasonable accommodation with your employer should strengthen your LTD application and should be noted in the application. To be entitled to protection under the ADA, a disabled person must be able to work either with or without an accommodation. Therefore, if your employer's failure to accommodate is an issue, it is important to avoid making factual statements in disability applications that may be construed as demonstrating an inability to work at all. If you cannot work even with an accommodation, then the Americans With Disabilities Act (ADA) doesn't help you and applying for LTD benefits is your only option.

Before the Supreme Court case of Cleveland v. Policy Management Systems Corp., general statements like "I cannot work any longer" or "I am completely disabled" in a disability application were used to bar a disabled person from suing a former employer for failing to accommodate him under the ADA. Since Cleveland, generalized statements no longer preclude a disabled person from filing a lawsuit under the ADA. However, specific statements of fact still may. Rest assured the insurance company attorneys and the courts will scour benefits applications looking for factual statements which may contradict a disabled person's claim that he or she could have continued working with a reasonable accommodation. For example, a nurse who states in a disability application that he cannot stand for more than five minutes nor lift more than five pounds may have his ADA case dismissed because standing for long periods and lifting more than five pounds are typically essential functions of a nursing job. Careful review of a disability application to demonstrate the steps taken to maintain employment and avoid inconsistent factual statements will not only increase the likelihood of receiving benefits, it will deny the employer's attorney a key argument often raised to dismiss an employee's ADA claim.

It is not only what you write, but what your doctor writes as well that should be reviewed. Disability benefits applications generally include physicians' certifications that must be completed by the applicant's physician. While "check the box" responses may not be given preclusive effect by some courts, the doctor's specific factual statements as to what the applicant can or cannot do bind the applicant as well if submitted without any clarification or disagreement from the applicant.

During the application process, it is important to produce all relevant medical records and have at least one physician, preferably the specialist treating the disabling condition (e.g. a rheumatologist for rheumatoid arthritis), write a letter stating specifically how the disabling condition prevents you from performing your job. For example, the rheumatologist might write for our nurse that the arthritis prevented him from opening bottles or entering data into a computer. This would not preclude him from later bringing an ADA claim against the employer if the employer refused his requests for voice recognition software for the computer (now readily available and affordable for most employers) or bottles that came with something other than screw-off lids for dispensing medicine. While you may provide additional documentation to the insurance company on an internal appeal of a denial of benefits, it is much more cost effective to marshal all your evidence and provide it with your initial application. Taking a little more time to properly prepare and submit the application will significantly increase the chances of having your application approved, avoiding the additional time and expense of an appeal, and avoiding problems with a later claim against your employer for a failure to accommodate.

Despite your best efforts to reach an accommodation with your employer and submit an accurately worded and detailed long term disability benefits application with plenty of supporting documentation, the insurance company has denied your claim. So what now? If you have not already talked to an attorney, you need to do so. While the insurance company internal appeal process is not complicated, anything you fail to submit during the appeal process cannot be introduced later in a court challenge. I have seen applicants who have simply written a letter as their appeal restating their belief that they are entitled to benefits. When the appeal is denied, the opportunity to produce additional medical records and letters of support from treating physicians is lost. An attorney can help you see what you or the insurance company may have missed and advise you of your likelihood of success.

Employer provided disability benefits are governed by a law called the Employee Retirement Income Security Act, or ERISA for short. The law favors the insurance companies and challenging a denial of benefits is a difficult undertaking. To prevail, all the insurance company needs to show is that it had a "reasonable basis" for denying the claim. Often, this standard can be met by having the applicant's file reviewed by an "independent" physician who renders an opinion that the applicant is capable of working. The applicant has the burden of showing the insurance company's decision was arbitrary. Mounting a successful challenge requires a careful legal review of the insurance company's entire claims file and the disability policy.

You are entitled to a copy of the disability policy and your insurance company's file regarding your claim at any time. You must send the disability plan administrator a written request. If they fail to send you the documents within thirty days, the plan administrator can be fined $110/day. Every evaluation of a claims denial must begin with a request for the file. If the insurance company refuses to reinstate benefits even after an internal appeal, the applicant's only further avenue for an appeal is a federal lawsuit. As I noted previously, the bar for an insurance company's reasonableness is not a high one and the majority of ERISA cases fail. Proper preparation and support of a disability benefits application will save you time and money and have the disability checks arriving sooner.

Additional resources provided by the author

Other resources for assistance with disability applications may be found at the employer's or the disability insurer's website. ERISABoard.com is a website with case results and useful information on disability benefits appeals.

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