Long Term Disability Insurer the Standard May Seek Recoupment for an SSDI Overpayment from a Claimant Who Declared Bankruptcy

Filing a bankruptcy used to be a protection for a consumer from all creditors. According to a recent court decision, disability insurance claimants cannot file bankruptcy in an effort to avoid repaying a Social Security Disability overpayment. The majority of long-term disability insurance policies provide that a long term disability insurance company is allowed to reduce the monthly benefit it will pay to a claimant if the claimant is receiving “other income benefits” from another source. The insurance company can even demand repayment years later if it has made an “overpayment.” A claimant who declares bankruptcy may still be responsible to pay back this “overpayment.”

Standard May Seek Recoupment in BankruptcyJoseph Terry, a Missouri state employee, had been receiving Long-Term disability benefits from the Standard Insurance Company since August 2006. His policy provided that the benefit that Standard would pay him would be reduced if Social Security disability benefits were approved. The policy also provided that Standard could recoup moneys it had previously paid if an award for the same time period was awarded after the fact. This scenario is very common as more often than not, private disability insurance providers are quicker to award or deny benefits than the Social Security Administration. Often times, a person may be on claim for a year or longer before Social Security will award benefits. However, SSA will award “retroactive benefits” for the time period it did not pay while the claim was pending. This can put a claimant and the insurer in an odd predicament because the insurer will rightfully claim that it was overpaying the claimant for that same period of time that SSA will now being paying for the past.

For instance, if the insurance company was paying the claimant $2,000/month for the time period of January 1, 2011 through December 31, 2011, then in January of 2012 SSA states that it is awarding benefits beginning January 2011, SSA will then send a big benefit check for that time period. If SSA states that the claimant’s monthly benefit will be $1,000/month, then SSA will send a check for $12,000 for that time period from 2011 to current. However, the insurance company will state that since it had been paying $2,000/month when in actuality it should have been paying $1,000/month, the insurance company will demand the SSDI check of $12,000 for any overlapping benefit period.

In Mr. Terry’s case, he even authorized Standard to automatically withdraw from his bank account any retroactive Social Security disability benefits. Standard in fact did so on July 24, 2007 which it withdrew the overpayment it argued it was owed in the amount of $45,316.54. However, Mr. Terry filed for Chapter 7 bankruptcy on July 31.

The Bankruptcy trustee categorized the $45,316.53 as a “voidable preference” and demanded that the Standard return the money it had withdrawn from Mr. Terry’s account. However, the Standard then began reducing the amount it was paying to Mr. Terry for his monthly benefit to recover the overpayment. The Standard ended this practice after the bankruptcy court indicated that this tactic may violate the automatic stay or the discharge injunction. Standard returned any of the money it had withheld, but indicated that it reserved the right to reinstate monthly deductions if a court determine the practice was allowable.

Litigation Begins

Lawsuits where subsequently filed with Mr. Terry initially filing a complaint seeking an exemption for the $45,316.54 and a declaration that Standard could not make deductions from his disability benefits. After a bankruptcy court’s decision denied Standard’s claim to a recoupment of the benefits, a Bankruptcy Appellate Panel disagreed. However, the case was appealed to the US Court of Appeals for the Eighth Circuit who ultimately determined that recoupment by the Standard could occur because it would be unfair for Mr. Terry to enjoy the benefit of the unreduced monthly benefit.

This case and its result emphasizes that even if a claimant files for bankruptcy, an insurance company may have a right to an overpayment and/or recoupment. This case was not handled by our law firm.

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There are 4 comments

  • D,

    You will need to consult with a Bankruptcy attorney as to your inquiry.

    Stephen JessupDec 13, 2014  #4

  • I received long-term disability payments from an insurance company for about 8 mths at which time I began receiving my soc sec disability.

    Now the Insurance company has closed my claim and seek reimbursement for overpayment of approximately $10k.

    Can I be awarded bankruptcy protection? If so, since I will receive no further payments from the insurance company, will they be able to seek reimbursement by any other means?

    D. MorganDec 12, 2014  #3

  • Beritan,

    You are in a Catch 22 and need to be careful. If you are collecting unemployment then you are certifying that you are ready, willing, and able to work. You will likely be denied SSDI. Additionally, you are running a company which also can disqualify you from unemployment and SSDI. If you are eligible for unemployment then you should take these benefits. If you cannot work at all, then you should seek SSDI at that time.

    Gregory DellOct 27, 2012  #2

  • I believe my situation is sticky. I became unemployed in the state of New Jersey in September 2011 and began collecting unemployment benefits in November 2011. I also obtained a business license and started my own company. I am not making any substantial money at all, but hoping to build my business. I believe I will be diagnosed with Rheumatoid Arthritis later this month (April 2012). I took blood tests and X-rays today. Thinking back, I believe this condition actually started in my late 20s when I went to the emergency room and had to take anti-inflammatory medicine but went into remission. It has reared its ugly head again over the last 2 1/2 years or more and I have made visits to doctors.

    Here are my questions:

    1. Once I am diagnosed with RA should I apply for SSI and SSDI (especially since I do not have any medical coverage) but continue to collect unemployment until the SSI and SSDI kicks in? Should I consider which amount would be greater? I need the medical insurance because I can’t get treatment otherwise! Will I be penalized for receiving the unemployment?

    2. How does the small income I’m making with my business come into play?

    3. Is there a chance they could deny my SSI and SSDI benefits if I quality because of my unemployment coupled with the business (less than $200/mo)

    4. Should I exhaust the unemployment benefits then apply for disability, keeping in mind the effect all of this will have on my alleged onset date?

    I’m so confused as to what to do. Any information you can provide would be appreciated. Thank you.

    BeritanOct 26, 2012  #1


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Steve Dell has done an exceptional job with my disability application process. The firm is extremely well managed. They have acquired an incredible amount of experience over many years. I recommend them for disability insurance claims without reservation. 

Don (Florida)

I called this firm a few months ago completely disparaged due to a company cutting off disability benefits at a time that nearly caused me to lose everything.

Attorney Alex Palmera and Danielle worked hard to reach an amicable settlement and my case was settled a few months later. This is a good firm and the specific expertise in disability claims saved me countless hours of hassle at a time when an already fragile state existed.

Thank you Mr. Palamara and Danielle.

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I have nothing but good things to say about how my buyout was handled with my disability claim. The level of professionalism was amazing. All of my questions and concerns were answered either by Danielle L. or Alex P. in such a timely manner and with such care I would recommend them in a heartbeat to anyone needing to approach their provider with buyout options.

They did a fantastic job communicating between the provider and me, always keeping my best interest at heart and always answering my many many questions. They really did take most of the stress out of this whole situation. I would give them a 10 out of 10 for every step of this crazy journey. Thank you so much for helping me through this.

Brenda R. (New York)

I needed assistance with an appeal for a LTD claim that was initially denied. Stephen understood what needed to happen to win the appeal and he did win the appeal for me.

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Greg Dell and his assistant Anneli have been extremely responsive and helpful, not only our initial consultations, but in follow-ups 1 and 2 years later with the insurance company to ensure that they comply with their agreements (which they did), as well as a separate and only slightly-related inquiry about our health insurance. I always hear back from them very quickly, which is rare and greatly appreciated.

Jeff P. (Oklahoma)

After a very long and frustrating ordeal to keep my LTD payments coming I decided to seek assistance from and attorney. After much research and asking those in the legal profession Dell & Schaefer seemed to be the top choice. I reached out and Alex Palamara was the attorney assigned to my case. All I can say is the experience was outstanding. Both Alex and his Paralegal, Danielle Lauria were excellent to work with. They were very kind, concerned, understanding of my frustrations and treated me with the utmost respect. Communication was excellent with regular updates and telling me what I could expect in each stage of the process.

Alex was also very straight forward with what to expect and no pie in the sky promises or expectations were made. In the end we won our case and I believe it was solely due to their experience and knowledge of not only the laws but the insurance companies as a whole. I would highly recommend them and am very grateful for the help they afforded to me.

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