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Can the disability insurance company require me to have surgery in order to collect disability benefits?



Disability attorney Gregory Dell discusses whether a disability insurance company can require a claimant to undergo surgery in order to collect disability benefits.

The disability carrier cannot require you to undergo surgery. There is always the exception of some disability carriers that might cite some random case where a particular claimant didn’t undergo some kind of procedure and the disability carrier is trying to make it as if that was a surgery. For example, you have a back problem and a neurosurgeon or an orthopedic surgeon has recommended you for back surgery, and you don’t want to take the risk to go for surgery, that’s perfectly understandable and reasonable, and there’s no way that the disability carrier can deny your benefits for not undergoing a surgery. Certainly, if there’s some kind of other procedure that your doctor’s recommended and you’re on disability now and you’re concerned about that, you should call us to discuss that and we’ll let you know our opinion on that issue.

There are 52 opinions so far. Add your comment now.

Thomas Jaurigue:

I had arthroscopy surgey 06/29/2010 for knee pain, then synvisc injections from 10/20/2010 to 11/04/2010 I had no releif from pain in my knee joint, I can’t walk or stand for more than 20 minutes, I’m recieving long term disabilty payments now, and my doctor requested I have total knee replacement surgery, he also stated I have a knee of a 65 year old man, and Im 45, I dont want this surgery, after all the horror stories I’ve read, once its done no going back, I can live with my pain and discomfort for now, can they stop my benifits if I refuse the surgery?

Attorney Greg Dell:

Thomas, the disability insurance companies could attempt to deny your claim for not having a total knee replacement surgery, but it would be unreasonable and outrageous. There are many cases that state that an insurance company cannot deny disability benefits due to a claimant’s failure to submit for a major surgery.

Thomas Jaurigue:

I have spoke with them today about this matter they said Im not required to get surgery,but they also stated that if my doctor says Im not totaly disabled they would cut benefits immediatly. And after 09/11/2012 then any occupation will kick in which means I’m cut off for good. My job dissciption says I have to pass a fitness test push & pull 50lbs to 120lbs, kneel squat climb latters stand walk twist, even after surgery I wouldnt be able to do all functions. What can I do before they cut my benefits?

Attorney Greg Dell:

Thomas, in the event that you do not recover, you need to continue to see your treating physician at least once every two months. You need to make sure that your doctors continue to documents your restrictions and limitations. You need to be honest with the insurance company about your abilities and never exaggerate your symptoms. When you get into the “any occupation” stage your restrictions and limitations will dictate whether there is any other job you can perform.

Margie Duncan:

I have been disabled for many years and receive disability payments. My condition has exacerbated to the point that surgery is needed. I have continuously seen my doctor every one to two months since the accident. Is the insurance company responsible for the cost of this surgery? I can not afford to pay for this myself.

Thank you,
Margie

Attorney Greg Dell:

Margie,

Your disability insurance company would not be responsible for the cost of your surgery.

DAnnP:

I have multiple, chronic conditions and symptoms that overlap into different physician specialties – including an as-yet-undiagnosed long-term, systemic inflammatory condition (as revealed by elevated ESR, CRP and Complement C3 & C4 tests), as well as diagnosed HyperPARAthyroidism (Blood Tests), osteoarthritis (MRI, X-ray), Cervical Spinal Stenosis/Herniated C5 & C6 discs (MRI) Raynaud’s Disease, Costochondritis, Fibromyalgia, Carpal Tunnel Syndrome &amp, Ulnar Neuropathy (EMG and NCS tests), Venous Insufficiency (Venous Ultrasound) & Extensive, Painful Pitted Edema from feet all the way up to groin, enlarged heart (Echocardiogram, Xray), enlarged liver (Ultrasound, CT), stomach nodules/erosions/gastritis (Endoscopy), IBS, and a number of other medical conditions.

All of these conditions and their resulting symptoms “together” have made it impossible for me to work, since I cannot sit at the computer (or do basic daily life activities for that matter) without experiencing pain, swelling, numbness, weakness and other debilitating symptoms after a short period of time.

The problem is, all of these conditions overlap into different physician specialties and, while one condition alone has not made me disabled, all of them together have.

Unfortunately, the specialists I have seen will only go on record for the specific condition that they treat and, knowing the symptoms of that one disease alone, they do not feel comfortable saying that that disease alone can prevent me from working nor will they comment on diseases/conditions outside of their specialty (for legal reasons). The insurance company even suggested I ask my family physician to fill out the long-term disability forms stating all of the conditions I have based on test results and notes from the specialists I’ve seen, but she says that for legal reasons, she does not feel comfortable filling out forms in which she has to comment on diseases in other specialties.

So, here I am suffering and unable to work, receiving no disability insurance, and no income because I was terminated from my job after I ran out of FMLA leave and was not able to return to work. I have only enough money to live on for about another month or two and after that I will have no money whatsoever and will likely lose my house as well. On top of that, I have to go on COBRA, and if I can’t make the COBRA payments, I will no longer have health insurance and will not be able to continue getting tested and seeing doctors to determine what is causing this as-yet undiagnosed systemic inflammatory condition that I have – which some doctors believe is what’s causing a number of my other medical conditions and symptoms – nor will I be able to afford treatment if/when they do have a diagnosis.

I would apply for Social Security Disability but I fear that I will just run into the same problems. Moreover, I’ve read that the process is very lengthy, it is difficult to be approved, and even if you are, you still have to wait 5 or 6 months before the payments start. That does not help me right now. Any suggestions?

Attorney Greg Dell:

DAnnP,

If your company offers disability insurance, then you need to apply asap. You should also apply for SSDI. We can help you to find a doctor that can review all of your records and render an opinion about your level of disability.

Corrina:

I currently have 4 herniated discs, a number of bulging discs, several more that are degenerated, fibromyalgia, scoliosis, damage to my tail bone & osteoarthritis in my spine. I have been working for the last 3 or 4 years with chronic pain. I am currently under the care of a pain management doctor. I have done physical therapy and have gone to the chiropractor, niether has helped with the pain. I work as a cook and my job entails heavy lifting every day. When the pain first started I didn’t have any herniated or bulging discs. I do believe the constant wear and tear has caused the damage that I now have. There was not any one incident at work that I can pin point that actually did it, so I don’t think I can get workman’s comp. The pain is gradually getting worse. I take pain medication but there are many days that it barely helps. Everyday is a struggle and by the end of my shift I am in agony. I don’t really want to go through surgery, I know too many people that are actually worse afterwards, but the pain is getting to be too much to bear. I wanted to know if I would be eligible for disability benefits?

Attorney Stephen Jessup:

Corrina,

If you have a private or employer provided disability policy you may be eligible to make application for benefits. If you do not, your only option would be to apply for Social Security disability benefits.

Ann:

Can worker’s comp refuse you if you don’t have surgery?

Attorney Stephen Jessup:

Ann,

You will have to consult with a worker’s compensation attorney.

Danielle:

I contacted a lawyer asking if they can help with my disability case and I was told I would likely be denied because I refuse to get surgery for my scoliosis. Can I be denied benefits for not attempting surgery? Also they won’t help with my case I have filed twice the first time it was denied the second time I got a letter back stating some information did not match my pervious enter. And they wouldn’t help me with that either.

Attorney Stephen Jessup:

Danielle,

I am assuming your question relates to Social Security Disability Insurance (SSDI) benefits based on your indication that you have filed twice. Please correct me if I am wrong. With respect to private or group disability insurance coverage an insurance carrier cannot predicate receipt of long term disability benefits based on your decision not to undergo surgery.

carolyn:

I have osteoarthritis. In my knee from a previous injury blow my whole knee out and I have osteoarthritis. In my spine two bulging this I’m over weight. And I stand on the job eight hours I can no long stand eight hour due to severe pain in my knee and spine my knees begin to pop and makes alot o noise and it limits my work I applied for long term through my job and through the as office I been off work for 6 months can I be approve for my Ltd at work

Attorney Stephen Jessup:

Carolyn,

Based on the limited information provided I would be unable to determine what the outcome of your claim would be. Is the LTD carrier currently reviewing your application for benefits?

carolyn:

Yes my claim is in initial review now for thirty day they say it takes up to forty five days my primary doctor has made me an appointment. With an orthopedic. Doctor I can’t stand up straight and my knee is severe with osteoarthritis

Marcus:

I have been denied for disabilty due to lack of evidence but I am going to a neurosurgeon because I was diagnosed with severe stenosis and multilevel disc buldges and disc potrusion. My questions is, would I automatically be approved if the doctor fills out RFCS and a summary of my ability to preform any standing lifting / walking / sitting / bending and any daily house activity?

Attorney Stephen Jessup:

Marcus,

With respect to disability insurance benefits there is rarely anything that constitutes an automatic approval. Please feel free to contact our office to discuss how to best approach appealing your case.

Mark:

I was an owner operator truck driver and had disability insurance. I had a work related back injury and had to have back surgery in July 2013. My insurance has been paying me benefits since then. It has been over a year now and they want to quit paying me. They sent me to their doctor and he gave the insurance company a vote in my favor, but the insurance company still wants to quit paying me so they are sending me to get an evaluation concerning my rate of disability so they can still try to get out of their responsibility.

Can they find a way to stop my payments or do I have some recourse to have them keep paying me? I am in so much pain still and can’t work and might not be able to again. I am 62 years old.

Attorney Stephen Jessup:

Mark,

Who is your disability carrier? If your policy defines total disability as the inability to perform the duties of your occupation as a truck driver, then I would think they would be hard pressed to determine you would be able to return to work driving in light of your pain and the side effects of your medication. Please feel free to contact our office to discuss your claim further.

Jamie Carver:

Keep getting denied. Severe scolosis over 80 degree curve. On oxygen. Can’t take a deep breath. Having surgery this September. I can barely walk, pain is awful! I need help.

Attorney Stephen Jessup:

Jamie,

Who is your disability carrier and do you have any administrative appeals left? Please feel free to contact our office to discuss what assistance we may be able to provide.

Jennifer H.:

As a child I was in a playground accident that broke my elbow in 3 places. I suffered with pain for many years. At 13 I was diagnosed with psoriatic arthritis and thought the pain in my elbow was from my arthritis. After having my daughter in 1999 I started experiencing numbness in my arm. I was referred to an orthopaedic surgeon. After x-rays and a nerve conduction test it was determined I had ulna neuropathy. I had surgery in 2000. I had a few months of no numbness or pain but unfortunately the pain and numbness returned worse than before. I saw another orthopaedic surgeon and had another nerve conduction study. He determined my nerve was out of place and recommended another surgery in which he would shave part of my elbow that was catching my nerve. I had that surgery. Again I had a few months (close to a year) of relief. However the pain & numbness returned. I could not afford another surgery. I have suffered for years… it’s unbearable. I have not seen a doctor regarding this problem (mainly due to finances & fear of hearing I need yet another surgery) since my last post op appointment from the 2nd surgery. During first and second surgeries I worked as a dental assistant where use of this hand (non dominant hand) was required to “hand off” instruments to the dentist while suctioning with my dominant hand. I can no longer do that type of work. After I left dental assisting I was a receptionist/front desk clerk at a medical office. After several months, typing was even painful. I left that job 3 years ago. Not because of my arm pain/numbness but because my childcare expenses, cost of living and gas costs were more than I was making so my husband and I decided I should stay at home with our children. Thinking about re-entering the work force I have no idea what job I could do with my arm condition. An acquaintance recommended I apply for disability benefits. However, reading about ulna nerve entrapment & ulna neuropathy I see where cases are denied for people suffering with this in their non dominant hand (which mine is). What are your opinions on this?

Attorney Stephen Jessup:

Jennifer,

As you have been out of the workforce for three years I assume you do not have an employer provided disability policy. If you do not then have any type of private insurance coverage your only option would be to file for SSDI.

Deidra:

I am a correction officer with 24 years on the job and have a workers comp case. I had a total knee replacement and was out of work for six months. I was getting paid my salary. Now I have been back to work for a week with physical limitations from the doctor. The knee is in severe pain, swollen, I can’t sit or stand for any length, climbing stairs, walking distance and bending. I am unable to do my job full-time which is care custody and control of inmates. My question is because I went back to work can still file for social security disability or three quarter disability?

Attorney Stephen Jessup:

Deidra,

Social security disability requires you to be out of a work for a year to be eligible for benefits. If you do have an employer provided disability insurance policy you could certainly explore your options under same. With that being said, please be cautioned that some disability insurance policies will not pay benefits if the injury is due to a worker’s compensation claim. I would suggest you obtain a copy of your disability policies from your employer to review in detail. When you have copies of the policies please feel free to contact our office to discuss your options further.

Byron:

I was born bow legged. Around the age of eight or nine I started having knee pain, my mom an dad sidy it’s cause I’m overweight. I had my surgery on both knees around the age of eleven or twelve and my legs came out nock knee an the pain has gotten worse. It went from stiffness before surgery to joint popping, numbness of the knee and foot and I can’t stand for more then an hour.

Jose Luis Sanchez:

I have a question that is very important not only to myself but also to those who are also going with the same problem. I went under a knee replacement surgery. I am not an American citizen and also I have a deportation. I do get the work permit esch year but, because of my injury, I can’t work. Still I am trying to recover and I don’t have the updated work permit. May I still apply for disability? Thank you.

Attorney Stephen Jessup:

Jose,

If you are not covered under a private disability policy you do not have the ability to collect disability under same. Additionally, if you do not pay into the Social Security, which it would not appear that you do, then you are not entitled to any benefits. Furthermore, if you have an active deportation order pending a work permit I would highly recommend you contact an immigration attorney.

Kevin Smith:

I am currently on long term dissability through work insurance. Since I’ve been out on dissability my job has been eliminated and my health insurance cut. I cannot afford to see a surgeon. My dissability says if I don’t see a surgeon my claim will be closed. I am however under the care of my family doctor who originaly diagnosed my case, I see him every 2-3 months. I went to surgery but it was canceled becuase my surgeon went missing and the second time I had a heart attack the night before. I am really afraid to go under the knife and risk not surviving. It’s been over a year now and it feels like I’m starting to heal some. They are telling me the Standard Insurance Company if I don’t have surgery I will lose coverage. Can they do this legally? I have servere herniations at L3 L4 L5 S1. I’ve had 1 disectomy before which didn’t work at all, multiple back injections which never work and are $800.00 a pop. Also I have applied to SSDI but of course that takes a long time. On the next time I speak with the dissability manager I am going to tell them I’ve decided agaisnt surgery as it’s too risky. Please help or advise.

Attorney Stephen Jessup:

Kevin,

I have never seen a situation where an insurance company requires surgery in order to continue to receive benefits. In fact there is case law that states they cannot. Is it a situation where they are requiring you be evaluated by a specialist to determine disability? If so, they may be asserting the applicable language in your policy for what is deemed “Appropriate Care” by a physician. Please feel free to contact our office to discuss.

Leonel:

I had tennis elbow for a year and got an mri showing a 50% tear of my tendon. I am undergoing physical therapy with no relief and I use my hands as a doctor to do procedures. I have been injected with steroids with temporary relief and I don’t want surgery. Am I obligated to have surgery if given to me as an option by Ortho Doc? I have a private Disability paid by the hospital.

Attorney Stephen Jessup:

Leonel,

You are not required to have surgery in order to prove a disability. Have you filed a claim for benefits with your carrier?

Manotis:

I’m a truck driver and I’ve pain in my back and shoulder areas. Sometimes my left bicep muscles be jumping also the right side of my chest be jumping, I’ve short and long term insurance, my question is do you think that I will be covered under them for this?

Attorney Stephen Jessup:

Manotis,

If you are not able to perform your occupational duties due to your conditions then you can make a claim for benefits. Unfortunately, there is no guarantee that your claim will be approved. Please feel free to contact our office to discuss the application process and what you could expect in dealing with your insurance company.

Tina:

I recently found out I have Cervical Radiculopathy multi bilateral central cord compression mainly on right side. And a lot of other stuff to make a long story short. I am unable to move my last 3 fingers correctly and my wrist doesn’t extend upward at all. Apparently from my Dr. opinion its going to get worst a lot has to do with degenative disc disease. She acknowledges that I have a disability but refuses because disability form states I have to be on some kind of treatment. The ER Dr. said conservative like PT, traction, steroid injections would be ok. She won’t sign she doesn’t. want to be responsible for what happens. Well I don’t want surgery! Can shed do that?

Attorney Stephen Jessup:

Tina, unfortunately, a doctor does not have a duty to complete disability paperwork. You may want to discuss with your primary care physician.

KB:

I have pain and numbness in my legs from an old motorcycle accident in 1994. Furthermore, i was informed by the hospital that treated me informing me I could have received hepatitus C from a donor they couldnt screen back in 1991-’94 I never received a biopsy because I don’t want to do it, take a piece of my liver, but my liver enzymes indicate i have hep c. Also i have extreme pain in my bicep/shoulder from bicep tendonitis i’ve worked physical labor since then but no regular doctor treatment, can i qualify for permanent disability?

Attorney Stephen Jessup:

KB, do you have coverage under an employer provided or individually purchased disability policy? If so, you could make an application for benefits under same. If not, your only option would be to file for SSDI if you have sufficient work credits. You will need to consult with a Social Security attorney. If you need assistance in finding one, please feel free to contact our office and we can get you in touch with one.

DL:

I have been on an occupation specific claim for 18 years. In the first few years the insurance had an independent medical review and monthly physician reports. Then they notified me that only a yearly exam was required. And twice during the last ten years they offered a buy out. By all indicators they agree with my physician that I will never return to my occupation. However, I can work in other occupations that dont require the conditions of my disability (lifting >20 pounds is an example)Suddenly, The insurance company is reviewing the claim. I am willing to cooperate but what can they require? May I refuse any testing that is invasive or carries any risk? Are there specific examples?

Attorney Stephen Jessup:

DL, the policy will almost certainly allow them to have you examined by a doctor of their choosing and I cannot think of any testing they would necessarily send you to that would involve risk. Without more specific information about your claim and condition there is not much more we could offer. If you wish to discuss your claim further please feel free to contact our office to speak with one of the disability attorneys.

Ammie S.:

Have had neck and back pain for 3 years. Orthopedic Dr. injecting shots in shoulder because of bone spurs. Neurosurgeon has diagnosed me with carpel tunnel. Spinal specialist says I need surgery on my neck but I do not want to get cut on. My job for the last 16 years is driving a forklift (mostly backwards) going over rough concrete floors and loading in trucks and railcars where the dock plates jar your body as you enter and leave and many other physical duties. My regular physician says I should have this neck surgery before I move forward with disabilty but I do not want to get cut on. How will me not having this surgery affect me filling for disabilty?

Attorney Stephen Jessup:

Ammie, you have no duty to undergo a surgery to qualify for benefits. Please feel free to contact our office if you’d like to discuss your case further.

KP:

I recently had Neurosurgery but some of the same symptoms prior to surgery are still present ie: numbness in hand, pain in arm, pain in neck and some new side effects of the surgery. As a Dental Hygienist, I took out my own insurance policy with an “own occupation” rider. The Insurance Company approved my claim; however, sent paperwork to be completed by me and a physician (they said they prefer the treating Neurosurgeon who disabled me in the first place) to be completed monthly. I won’t be under his care after 3 months unless I have some complication or new symptoms so, can they make me go to see him just to fill out paperwork (which I highly doubt he’d waste an appointment for that) or can I just go to my General Practitioner? What happens if the GP won’t continue with the paperwork as he was the one who referred after doing an Xray and didn’t disable me in the first place?

Attorney Stephen Jessup:

KP, it is not uncommon for a surgeon to not fill paperwork out after the course of treatment following a surgery. In such a case, a PCP doctor will often handle the paperwork. If your GP won’t complete forms you will need to find a doctor who would be willing to.

Rudy F.:

I’ve been on long term for the last two years due to having 2 shoulder surgeries (Sept 28 2015 and Oct 21, 2016), now I’m about to have a 3rd one and wrist surgery. Now my long term claim has been closed due to me not being totally disabled. Can they do that right before my upcoming surgery which will have down and out for at least six more months?

Attorney Stephen Jessup:

Rudy, although it does not seem to make any sense – unfortunately, yes – if the carrier had a doctor determine you could work that would be enough for them to deny the claim. In light of a pending surgery that seems unusual, unless your policy has a 24 month limitation for musculoskeletal/soft tissue disorders. Please feel free to contact our office to discuss your claim further.

RL:

Stephen,

I work for a major medical eye wear company, my job description is consulting to optical Dept, OD and MD. I usually am in a very busy, noisy settings. I lost a lot of hearing in my left in my 20/s and I am now 63.5. In June of 2016 I had a sudden drop in hearing in my right ear to where I have a hard time understanding noisy surroundings. My doctor suggested a cochlear implant. The implant terrifies me and there is no guarantees that it works.

If they implant in a ear and it does not work it kills the ear. Can a disability company force to have this invasive surgery… it’s not rotor cuff… and I have read it’s great for watching tv and one on one … which I can do now with my hearing aid.

Even with the cochlear the doctor said I will still struggle in noisy offices.

Attorney Stephen Jessup:

RL, an insurance company cannot require you to have surgery as a requisite to receipt of disability benefits. I am familiar with the cochlear implant as I have several clients with them – and you are correct that they can certainly be helpful, but do have shortcomings as you described.

RLH:

I received STD and then have been receiving LTD through Guardian since being unable to work in May 2013. I have Systemic Lupus, fibromyalgia, extensive arthritis, chronic kidney disease (never on dialysis and now stable), chronic pain due to degenerative disc disease and spondylolisthesis in my cervical spine, neuropathy, and depression, anxiety, and panic attacks. I was finally approved for SSDI on my second attempt in June 2016. Throughout these 4 years Guardian has continually tried to stop/deny benefits for many different reasons; requiring forms to be filled out constantly even though my doctor\medicine\personal information stayed the same and trying to get me to miss a due date for returning the paperwork, cancelling due to them stating I was able to perform “less than sedentary” work in my own occupation per their own FCE, even though I had a form from my primary care physician taking me out of work permanently signed in 2013; then for any occupation after that, and now for a 24 month limitation for mental and emotional conditions and chronic pain conditions even though they “acknowledge” that I have multiple medical conditions. I have 180 days to appeal that decision which I plan to do. Would it be wise for me to retain legal representation at this juncture to hopefully resolve this matter, aside from the normal paperwork updates required, once and for all? Thank you.

Attorney Stephen Jessup:

RLH, I believe it would certainly be wise to at the very least consult with an attorney. Please feel free to contact our office to discuss your denial with one of our disability attorneys.

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