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How do I determine my date of disability?


  • How Do I Determine My Date of Disability for a Long Term Disability Insurance Claim?

Disability attorney Stephen Jessup discusses how difficult it can be for a claimant to determine their date of disability.

Determining the date of disability can be a complicated process. Obviously, if you’ve been in a car accident or if you’ve had a heart attack, it’s a little easier to determine that catastrophic event as to when it started. However, most people that do file for long-term disability, they have had a chronic condition that’s been ongoing, they may have been suffering with it for years, but they continue to try to work.

So determining when the date of disability is a coordinated effort between you as the insured, your doctor, and the medical records, and making sure that your records are really documenting your ongoing problems. Because if you file a claim four, five, six months later when that insurance company is reviewing that claim, if there isn’t good medical documentation around the time when where you’re stopping work, where your doctor is maybe advising you to cut back or to stop working at the point, the insurance company is going to challenge whether or not there was enough support to go on disability at that time.

Another thing, your policy may have a residual disability provision and that analysis as to date of the disability is something that’s going to be more complicated as financial circumstances are also going to have to weigh into that. So there’s no clear-cut, easy way to determine what date you became disabled short of a catastrophic event. If you’re considering filing for disability, it is advisable that you contact us and we can help try to guide you through that or help to provide a road map into how to best position your claim for filing for disability.

There are 5 opinions so far. Add your comment below.

RL:

What if an employee was never provided insurance plan documents when employee was starting to become disabled by a host of conditions, at the onset of this, requested the plan documents in writing, but was not provided same, then subsequent to this as the employee was struggling to remain employed due to the host of medical conditions and because of those medical conditions missed many hours and days from work, in addition to several medical leaves during that same time.

During those medical leaves, the employer provided STD claim forms to the employee and did their part in filling out the employer portion, however at all times the employee was un aware of provisions in the group plan that covered partial disability and benefits as a result of.

Fast forward, the employee never returned to work after last STD period and transitioned into LTD.

During the STD phase, the employee received correct % weekly benefit amount per the employees insurance class and premiums paid as a full time employee.

However, when the claim transitioned into LTD the monthly benefit was reduced, with stated reason ” the employee was not a full time employee ” this was later corrected per the employer, however, the carrier then upheld the reduction of benefits stating after taking an AVERAGE of earnings in a look back period ” 6 month period ” the claimant was over paid.

Fast forward, this resulted in an appeal, the issues were, the carrier calculated earnings during time periods where employee was partially disabled, missing days and hours of work, in addition to several medical leaves.

The determination of the appeal resulted in a further reduction of benefits, as carrier stated they then averaged the most hours worked ” for the benefit of the claimant ” and during this time frame they took the most hours worked and based a benefit amount on those hours, which actually resulted in a further reduction of benefits.

The claimant argued this was not fair given the claimants earnings should be calculated using wages earned for hours worked as a RFT employee time period prior to disability.

The answer was to sue them in court.

(continuing to ignore the partial disability provision in the policy that would have protected the employees salary for which premiums were paid at all times based on same salary)

The carrier has not responded to any communications in writing for almost a year regarding this outstanding issue, however the carrier has continued to seek updates to learn if the claimant has been awarded SSDI (a requirement in the policy)

As such, SSDI was awarded and the carrier alerted of same, and again these ongoing issues were addressed and carrier has failed to respond to the notice of SSDI approval for 50 days, and sent the LTD monthly benefit amount, not reduced by the SSDI award, and again; NO response to the ongoing issues pointed out repeatedly, also alerting the carrier they will be looking for SSDI over payment, however, given the above benefit calculation errors there would be no SSDI over payment at this time, in fact the carrier would still owe the claimant additional benefits and of course the need to correct the monthly benefit forward to resolve these issues.

No response is forthcoming what so ever on any of issues.

RL:

I should also note the entire claim for benefits were a continuous battle with clear written retaliation throughout the process.

The carrier attempted at every turn to deny claimant any benefit, and a forced IME that was in the claimants favor (while it is understood they can request same) written communications from carrier have clear retaliation efforts in messages, one for instance: from a risk manager.

When the above appeal issues mentioned prior was determined, the risk manager said they would be willing to review new information, when the new information was provided as she requested, she then responded she was taking back her prior agreement to review the issues because too much information was sent, and because of that she stated to get an Attorney and sue.

Obviously retaliating a claimant’s good faith efforts to provide information the risk manager herself requested from claimant.

And because it was too much, responded she was taking back her agreement and to get an Attorney to sue.

Theres much more on this level and maybe worse, however, the only thing the claimant wants is the carrier to act in good faith, not at the best interest of the carrier, but in the best interest of the claimant.

RL:

Your website offers a world of helpful information and answers many questions. Per the topic of discussion

“How do I determine my date of disability?”

How does one know there is a partial disability provision in a STD, LTD policy since the employee is not an insurance professional, never heard of partial disability and never saw the plan documents, were never afforded the documents per written request. And only learned of the partial disability provisions after transitioning to the LTD claim.

Had the employee been provided the plan documents, the employee would have known the term partial disability existed, and accordingly been eligible and apply for partial disability benefits while struggling to remain employed despite the medical disabilities.

If not for the employer concealing this information, the claimant would have received partial disability benefits, which in turn would have secured and locked in the employees wages and earning.

There has been a gross injustice here and this may be the 1rst case of its kind, but as I understand the employers responsibility under the ERISA statues also make them liable.

Not just the fines associated in with holding plan documents at a 110.00 daily rate, but the detriment the claimant suffered as a result, which are huge, at the hand of the employer.

In addition, the employer has been asked throughout to provide statements from employees director and manger co-worker to verify claimants work schedule and hours (at all times, despite the employee claimant was listed as a RFT employee throughout the tenure of employment, in addition pay stubs were also submitted to the carrier showing the earnings and hours prior to the partial disability to support the salary and insurance premiums paid at all times to protect same salary.)

Manager responded in writing and stated she was told by her superior, she could not provide any statements to support the employee.

Employers Attorney then stated in writing not to contact the employer or any employees again.

They should all be held accountable for this fraud, and concealment, as it is fraud in my opinion.

I am sorry to be so vocal, but these situations need exposed so that others will not be deprived and retaliated against for being disabled and obtaining their rightful benefits.

Fred:

I was in a realy bad wreck driving a diesal cabover truck that accelerated on its own and ended up taking out some trees and the wall at the front entrance of Dell Web retirement community at 50 to 60 mph. I was in the hospital for a month and then 2 weeks for physical therapy. Three weeks after I was released I had both legs and knees x rayed and found infection in my right leg and back in hospital for three weeks then home for home health care for 3 months. I was in a wheel chair until late March of 2017.

2 months later I had a C.T. scan on my head and found a mucas seal between the metal plate in my forehead and eroding my skull, October 23rd I went to Shands in Gainsville and had the plate remover and infected skull tissue remover and replaced with 5 centimeters of plastic skull material. I am now blind in my left eye and almost no perifial vision in my right eye. Have a titsnium fibia in my left knee lost my splien from the wreck had 5 pins in broken left hand. I did not file for disabilty untill early 2018. They approved the medical part but say I did not become disabled until December 30 of 2017. I don’t know why since there was no way I could work from the date of the accident. I also get a check from workers comp every 2 weeks for 745.46 and not sure how that will affect my claim. I am thankfull to be alive and that my employer has good insurance.

Victor Pena:

Fred,

It sounds like you sustained some pretty significant injuries that would likely support a finding of disability from the date of your accident going forward. However, disability insurance policies typically contain a waiting period or “elimination period” which covers a period of time that you must be disabled before benefits become payable. The waiting period can vary from 7 days to 365 days in some policies. It sounds like you are more than likely dealing with a long elimination period. If this is not the case, and you disagree with your insurance company’s decision please contact one of our attorneys to discuss.

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