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Can I submit a long-term disability claim if my employment has been terminated?

Attorney Cesar GavidiaAuthor: Attorney Cesar Gavidia

It is not uncommon for employees to struggle and suffer through sickness or injury and work, even if working is counter-intuitive to their own health and effective productivity at their occupation. Unfortunately, these employees often find themselves as targets of work-force reduction or layoff, because despite their best efforts they are unable to keep up with their employer’s expectations and requirements. Regardless of the legality of this type of employer termination strategy, it leaves the sick employee in a terrifying predicament. It is often at this point that the employee decides to apply for long-term disability benefits under their employer sponsored long-term disability plan. However, depending on the circumstances, they can expect significant challenges and even the possibility of the disability insurer arguing that the employee lacked coverage. In most cases, the employee will be told by the disability insurer that their coverage ended on their last date of work, and that the employee lacked coverage for any subsequent claim of disability. However, the employee could prevail in their claim even if their employment was terminated prior to the submission of their disability claim.

Such was the case for Eduardo Nieves, who had worked as a satellite communications technician prior to his disability. After undergoing spinal surgery Mr. Nieves returned to work, however, continued suffering from spine and shoulder pain. Despite his unwavering work ethic and commitment, Mr. Nieves found himself among other fellow co-workers who were terminated following a decision by the employer to reduce its work force.

Mr. Nieves submitted a request to his employer to be allowed to apply for short-term and long-term disability insurance benefits through the employer sponsored long-term disability plan with Prudential Life Insurance Company of America (Prudential), however, the employer refused to provide Mr. Nieves with the necessary application forms. Notwithstanding, Mr. Nieves contacted Prudential directly and applied for benefits. Not long after applying Prudential informed Mr. Nieves that his claim was being denied on account of lacking coverage on the date following his last day of work. In other words, Prudential deemed him covered only through his last date worked, and since, according to Prudential, he had performed all of the duties of his occupation through his last date worked, his date of disability would be the following day, the first day he did not perform any of the duties of his occupation.

Mr. Nieves appealed Prudential’s denial, however, his appeals were denied and he was forced to sue Prudential in U.S. District Court in Arizona.

In an interesting decision, the court found that Prudential had arbitrarily selected the date following Mr. Nieves last day worked, March 11, 2015, as his date of disability, since no where in the record had Mr. Nieves claimed March 11th to be his date of disability. Prudential attempted to argue that it was impossible for Mr. Nieves to be disabled from his last date worked since he had effectively working performing his occupational duties through that day and therefore would not meet the definition of disability.

The Court, citing to the 7th Circuit Court in Hawkins v. First Union Corporation Long-Term Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003), reasoned that there is no “logical incompatibility between working full time and being disabled from working full time” as “a desperate person might force himself to work despite an illness that everyone agreed was totally disabling.”

In the case of Mr. Nieves, because he had attempted to submit his disability claim prior to his employment being termination and he had the necessary doctor support, he was successful in establishing that he was a covered employee under the disability plan. This is distinguishable from a case where someone attempts to establish a disability claim with a date of disability following the termination of employment. In such a case the claimant would likely not succeed in establishing their claim for disability.

There are 14 opinions so far. Add your comment below.


I worked for an employer with Hartford Group Insurance Plan I went out on FMLA for about a month. I was fired a few days before I was supposed to return to work. I filed for short-term disability and did a lot of leg work and phone calls to prove my claim. I was in a very high pain level and stress was added by Hartford daily, they made financial situation unbearable and medical issues were many and chronic. I was denied unemployment due to medical issues. I was so stressed out and confused I didn’t want to even deal with Hartford’s low life tactics. After I became homeless the VA and HUD helped me with an apartment and I received a check for around $1000.00. Strangely this was the same month I received my first SSDI check. I never filed for long-term disability due to the fact they never even paid on my short-term disability and it took time for a diagnosis from doctors. My private sector doctors and the hospitals never diagnosed me correctly and even did things that were I believe against my health concerns. After being fired I lost my health insurance so I had to rely on the VA doctors and hospitals. This took even time of a year and more and finally started getting proper testing and diagnosis. I applied for SSDI with no attorney and I was approved. I was in terrible pain constant and chronic and I still am but at least I am dealing with it better. I do believe Hartford still owes me back pay on my disabilities. I did pay them for close to ten years before I had to file and they only made everything worse.

Attorney Stephen Jessup:

Troy, you can certainly reach out to Hartford to try to secure any owed benefits. However, if you failed to appeal the denial of the short term disability claim they may have a legal basis to not consider any information you provide to them. Please feel free to contact our office to discuss your situation further.

Monica N.:

I am currently on state funded short term disability. If I am still disabled after 90 days I can apply for long term disability through my employer. If I am terminated before the 90 days will I be able to still apply for the LTD through my employer?

Attorney Alex Palamara:

Monica, so long as you were covered under the LTD policy at the time of your disability, you will be able to apply for the LTD through the Policy and there should be no issue with coverage. Your termination should thus not be an issue. If you have any additional questions or would like a free consultation, do not hesitate to contact us.

Kurtis N.:

I was disabled to work and I couldn’t pay for my health insurance anymore and my long term disability was cancel before I could file my claim. Can I still file a claim? Had to wait on the grease time. What can I do?

Attorney Alex Palamara:

Kurtis, I am sorry to hear of your difficulties. Typically, if you were covered under the policy at the time you became disabled you can certainly still file a claim. Please contact us and we will gladly speak with you so that we can learn more and hopefully assist you with your claim.

Brenda M.:

I worked for my employer for six years and last year, February 1, I became sick on the job and have not worked since then. I was dx with cancer and had chemo and radiation which ended in August. Awaiting my third MRI which if clear will put me in remission. I am receiving long term disability from my employer who sent me an email stating that I must return to work this month by the 14 or my employment will be terminated. My long term disability is good until 2020. Can they do this to me?

Attorney Alex Palamara:

Brenda, I am sorry to hear all that you are going through and our thoughts are with you. I am happy to hear that your LTD claim is being paid. Regarding your employment status, I don’t have an expertise in employment law issues, however I believe the FMLA laws will govern your claim. There may be nothing protecting your employment status. However, your LTD benefits will continue even if your employment has been terminated. Should you wish to discuss this or your disability claim, please do not hesitate to contact us.

Emma H.:

My husband was employed for the same company for 25 years as Computer Technition. He was diagnosed with MS in 1993 and was offered a Helpdesk Position with the same company working from home. In 2012 he had an emergency triple heart bypass and was on short term disability for a few weeks an then returned to work. While working from home in his office setting, it gave him purpose and reason to get up daily.

In January 2013 his employer called him and told him his position was no longer needed and benefits would end midnight that night. With his physical disability and now a heart condition, there was no way he would be able to even think of applying for another job much less be considered. He applied for Social Security disability the next day and received approval within 3 weeks of applying. He received severance pay for 6 months from his employer and then he started receiving his Social Security benefits right after.

We are so very grateful that he never missed being paid during that time. For 25 years that he was employed he paid for long term disability. We were told by a couple of lawyers that he would not be able to file for long term disability with his employer since being terminated. I can’t help but think that this just doesn’t seem right or fair. Can you please help?

Attorney Cesar Gavidia:

Emma, if your husband stopped working in 2013 the time in which he had to provide the disability insurance with notice of his claim (typically 1 year) may have expired. You may contact our office to discuss what options if any he may have.


My husband is on short term disability right now and his fmla just ran out. It seems like his employer is trying to push him out and he has std through April. So if they fire him would it still be possible and raises to get long term disability since he is still on short term disabilith.

Attorney Stephen Jessup:

Careb, if your husband was covered under the long term disability plan as of his date of disability, the his rights under the LTD policy would be “time stamped” as of the date his short term disability began. Meaning that even if his employment is terminated he would still have coverage under the long term disability plan due to the fact that he was a covered employee as of the date his disability began.


Could o file a claim for LTD after I had left the job 2 years past? I have since been found totally disabled by SSD. However, my last day of work was 6/16/2017 and that is the date that SSD used to begin my SSD benefits. While at work for three years at this employer found out during my last year I had prostate cancer. Shortly after the diagnosis, perhaps two or three months later I went to HR to discuss filing for LTD. I filled out the application but never filed and then left on my own.

However, the last year there the company was trying to sell and placed me, who was a supervisor, in non stop turmoil. The stress between the cancer and the job trying for some of out was so great that I left and took early SS, but filed and received SSD.

Thank you.

Attorney Rachel Alters:

Michael, you can try to file, however there is usually a notice requirement in the policy that requires you to give their insurance company notice within 30 days of your disability. But sometime they will make an exception if you were not capable of giving them notice.

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