Long Term Disability Law Blog
Are you asking yourself the question, “Do I qualify for disability insurance benefits?”? In this round table discussion, the disability insurance attorneys at Dell & Schaefer examine the topics:
- what are the terms of your disability insurance policy
- the definition of “pre-existing condition”
- why medical support is so important
- how carriers use the fact that a person has worked with a chronic condition against disability policy holders
GREGORY DELL: Hi, I’m Greg Dell here with Stephen Jessup and Cesar Gavidia. And the question of the day today is, do I qualify for disability benefits, and specifically disability insurance benefits? Because we are a law firm that only handles long-term and short-term disability insurance claims. Yet there is maybe 150,000 disability insurance claims and over three million claims a year for Social Security disability.
So there’s a big difference between those two. So for our video, we’re focusing on the disability insurance benefits. And this question’s probably one of the most popular ones that comes up in a Google search.
And most employers or most employees who are at work are often thinking, I have a condition. It might be difficult for me to work. But if my employer provides me with a policy, do I qualify? What does it take? So, Cesar, what’s the starting point for someone to figure out if they qualify for benefits?
CESAR GAVIDIA: Well, the obvious thing is that they have to have some sort of sickness or injury that’s creating some sort of problem for them that is creating some sort of limitation for them that’s preventing them from really effectively and adequately performing their occupation. And that’s like the threshold.
From there, in most cases, what a disability insurer’s going to want to see is support within the medical records, within your doctor’s records supporting that those limitations line up with an opinion from your doctor that you’re not able to work, or that you shouldn’t work, or that you need to take leave from work.
GREGORY DELL: OK. Well, I want to back it up a step because medical support is essential. But Steve, how important from the beginning– people call, they don’t even have a policy. What is the policy? And then how important is it to understand that policy?
STEPHEN JESSUP: Well, The policy first and qualification, too, one of the big things, especially on employer-provided policy is, how long have you been covered? Is there going to be a concern over a pre-existing condition? You may have all the medical in the world to support you can’t work, but if you don’t qualify beyond a pre-existing condition problem, you’re never going to see those benefits.
And what did you sign up for? I’m sure we’ve all taken calls where they signed up for short term, but never bothered to enroll in the long-term disability policy, things like that. So having copies of it– and a lot of times, people are concerned, well, if I ask my company, is it going to tip them off?
And I usually tell people, if you want to get a copy of the policy, the best way is to ask, say – tell the HR that you need a copy of any and all insurance policies you have. Because a lot of times, the summary plan descriptions they’ll send you everything, your life insurance, your dental, your vision. You can get it that way so you at least have an understanding from a general sense as to what this is going to cover.
Because you could qualify medically. You could have all this stuff that qualifies you. But the reality of a disability claims is you may still never be approved. So there’s a nuance and there’s an art to this idea of the diagnosis translating into a disability like Cesar is saying, and then still having to deal with an insurance company that’s incentivized not to pay your claim.
So the policy is the foundation, and then built on with the medicals and all that stuff. But it’s such a hard question to be able to answer, do you qualify? If you have a doctor who’s willing to support you, you have coverage under a policy, you can’t work, it’s your only option, then I say, you have to give it a go. But it doesn’t necessarily mean that you’re ever going to see a payment from the insurance company.
GREGORY DELL: Cesar, in terms of the employer providing the policy, because most people who call and say, do they qualify, they haven’t even obtained their policy. And one of the things that we always do is we tell a claimant when they reach out to us, please send us a copy of your policy. We’ll provide you with a complimentary review of that policy, and then we’ll discuss your options. Why is it so important for you to have that policy? Are they– they’re not all the same, correct?
CESAR GAVIDIA: No, they’re not all the same. There’s certainly similarities amongst group disability plans. But like Steve was explaining, even pre-existing conditions, which appear in almost every single group disability plan, can be different.
They could be different in terms of how long that pre-existing condition period is for, how long perhaps that period for which you have to file disability– that you filed disability will be considered a pre-existing condition, how long that period’s for. And aside from that, different types of limitations, mental nervous limitations, there’s even now neuromuscular skeletal limitations in disability policies, that’s becoming more and more common among disability insurers. So before anything, you have to have a copy of your policy so that you understand what the terms and conditions are that must be met before you can begin receiving benefits.
GREGORY DELL: So Steve, we’re talking about this preexisting condition. And some people, we’re talking industry lingo and policy lingo. What is it real clear?
STEPHEN JESSUP: Pre-existing condition, I think most people have a general concept from health insurance. And they also think with the Affordable Health Care Act, Obamacare, that pre-existing conditions got wiped out, well, health care, but not in disability. So the standard language I would say you most commonly see is if you’ve been covered under the policy for less than a year.
So especially some people I’ve been working for my company for a year. But if they had to wait 90 days before the coverage came in, that’s when it starts. So typically, if you file within one year of coverage, they will look back to usually three to six months prior to the start date of coverage to see if you had treatment for any medical condition that you are now claiming is disabling you. And if you had, they have a route to be able to argue it’s a pre-existing condition and they don’t have to pay it.
And on the long-term disability policies– you’ll see it in short term, not nearly, obviously, as often as long term. But the reason why it’s containing so many long-term policies, it’s a way to avoid someone getting a job just to try to file for disability right away. So there is that period. And there’s been times with clients and they’ll call us, and we have to advise them, you have to try to wait. You have to wait till beyond this date or you won’t have any grounds whatsoever.
So the policy is the rule book. This is how things are going to work. It gives you a roadmap. If you don’t have that, you can follow claim, and you may eventually get to a result somewhere, but it’s going to be a lot harder, and it’s going to be a lot more confusing than if you know what to expect getting into it.
GREGORY DELL: But even if a person has a condition that they had before they started working, if the policy says you have to work at least 12 months, and then on 12 month and one day they then make their claim, would they be OK even though they had a pre-existing condition beforehand?
STEPHEN JESSUP: Yeah. So you can have a pre-existing condition. You can have a bad back for years and years and years. But if you’re able to work for that full 12 months as required before you filed, that pre-existing is not going to go. Granted, the insurance company may still try to – they’ll still on the back end do a review to see, but yeah, there shouldn’t be an issue there.
GREGORY DELL: Cesar, you get through, and we review a policy, and we say, yeah, you’re going to – no pre-existing, and it looks like you have a decent policy, and here’s what needs to happen. You started earlier in medical support. Why is that the foundation of the claim? Why is that – why is it so important?
CESAR GAVIDIA: Well, the insurance company’s looking at that, your medical support, as the evidence which supports your claim of disability. Certainly it wouldn’t be reasonable to expect an insurance company just to take you on your word that you’re disabled. There’s gotta be a foundation. There’s gotta be evidence to back it up.
And that’s why your medical records are important. Your medical history is important and for the insurance company to have that. In fact, that’s written into the proof of loss requirements in these disability policies. They have to have medical records to support your basis in claim for disability.
GREGORY DELL: So often a claimant calls, and they’re looking to qualify. And I’ll always say, does your doctor support you? And half of them will be like, well, I think so.
How important is it to, number one, have that conversation with your doctor about whether or not they support the claim? And number two, when do you have that conversation, before you file the claim, or – I should say, before you stop working, or after you stop working? I don’t know which one you want to take there.
CESAR GAVIDIA: I don’t think that it’s going to really help you much to have that support built up after you’ve stopped working already because I think the basis and that event that occurs to push you into that claim of disability has to be your doctor having done an examination of you, has to be a documentation of your symptoms of the problems you’re having, and an opinion from your doctor saying, look, you shouldn’t continue doing what it is that you’re doing that either you’re not doing effectively enough or perhaps even maybe aggravating your condition.
GREGORY DELL: But what about the person, Steve, who calls you and they go, look, my back’s been bothering me for two years, and I’ve been working through the condition. And that’s very common. And now they’re like, it’s so bad that I’m finally going to the doctor. Is one doctor visit enough with someone who’s chronic and now they want to file? When is that person supposed to file?
STEPHEN JESSUP: Well, there’s no hard, fast rule. But if you have very thin paperwork, it’s not going to be taken seriously by the insurance company, unless there’s a catastrophic injury. You get in an accident or something, then there’s that.
But chronically speaking, they’re always going to come back, you were able to work with this. You didn’t seek medical treatment, so it must not have been that bad. So they’ll use that against you. Then going back to with the doctor support, the doctor’s going to have to file an attending physician statement as part of the claim.
GREGORY DELL: And what is that?
STEPHEN JESSUP: That’s the form basically of your doctor discussing what the medical problem is, your restrictions and limitations, why you can’t work. And you’ll see plenty of denials that come where the doctors don’t want to get involved. They won’t fill out the form. That’s another question to ask, if the doctor’s going to assist because doctors are no duty to fill out these forms for you. And there’s a lot of times they don’t want to get involved and deal with an insurance company.
And if they don’t fill it out, or God forbid they check the wrong box, or I’ve seen plain as day where they’ll put “I’ve provided no restrictions, or limitations for this person’s return to work,” I don’t have any– I didn’t take them out of work on this, and under this idea if you get into court, this idea of an arbitrary and capricious review where ultimately you have to show that they didn’t act reasonable in denying the claim, if your own doctor’s not going to support you, there’s no greater reasonable basis and deny it than agree with someone’s own doctor. So you really want to work that up.
That’s why a lot of times when people will call us prior to filing, they’re thinking about it – and we ask, have you been to the doctor? Are you going to the doctor? And if they haven’t, the advice will often be you need to start getting into the doctor. You need to have these conversations with the doctor as to what’s going on because you’re going to get a file review.
The chance of the insurance company sending you for a physical review is going to be limited. It happens, but more often than not, they’re going to just review your medical records. And that’s going to be end all be all. So if you have nothing there or very limited, the chances of success is going to be small.
GREGORY DELL: Cesar, I want you to explain something I always tell the claimants when they call me. I go, your claim is only as good as it is on paper. And why – why do we have that here as a way that we have to work here?
CESAR GAVIDIA: When Steve was talking, that’s exactly what was going through my head. And it’s– the fact is is that you’re unlikely in most claims – now there are certain claims now that more insurance companies are sending field agents to meet with the insured’s or sending them, like you said, to an independent medical exam or something like that, where they’re – where they’re setting eyes on you, they’re meeting you, they’re talking to you, they’re going through your claim.
But that really is going to change very much in terms of the course of your claim if the medical records don’t really paint a picture of a person who’s having limitations, who’s having problems to the extent that they’re not able to work in their occupation or in any occupation. So that’s how critical it is. You are in these disability claims only as disabled as you appear in your medical records.
And in that administrative record, if you one day have to go to court, because that federal judge isn’t going to see you. He’s not going to hear any testimony about your claim, or about your case, or about how disabled you are. All he’s going to do is review those medical records and review a claim file or administrative record that’s produced by the insurance company.
GREGORY DELL: But Cesar – and I mean, this happens all the time. Number one, most people don’t like going to the doctor. That’s a given. Number two, a lot of people, they’re not complainers. So here you are, you don’t want to go to a doctor, you’re not a complainer. Almost all of our clients don’t want to be on disability because you’re giving up at least 40% or 33 and 1/3% of your – you can only qualify for 60% or 66% of your income.
So three things, I don’t want to be – you don’t want to be on claim, you don’t want to go to the doctor, you don’t want to complain. When you do go to a doctor, now you meet a doctor who doesn’t document the file that well. And you want to go and file.
And we get the records at some point in time, and we’re like, yeah, we see you went to the doctor, but the doctor didn’t really put much higher, and your claim doesn’t look strong on paper. Is that person going to be able to collect? How do you help that person?
CESAR GAVIDIA: Well, sometimes it’s a function of building up that file. It may not happen at the first go around. They may get denied when that claim gets filed. It may have to get built up through an appeals process.
We may have to go through sending that person through some sort of functional capacity testing or sending them through a vocational assessment of some sort to really break down the physical demands of their occupation or whatever the standard is at that point in time. But yeah, it’s – in terms of helping them, you have to look at the complete picture and assess what’s going on and decide what it needs.
GREGORY DELL: And then Steve, the complete opposite of that scenario I just presented was the client who calls you, has been going to the doctor for two years, working whatever job they are, very few missed days, and then reaches the point where they say, I can’t do it anymore.
And disability carrier says to you, well, you’ve been complaining for two years. You’ve been going to the doctor. I don’t see any reduction in what you’re doing. Why now are you disabled? And how do you address that?
STEPHEN JESSUP: That’s tough. What changed? What change in people do work– and I had a client last year, a paraplegic from an accident, wheelchair bound, had very limited use of the upper limbs and everything, and he was able to go to work.
Great work ethic, did not miss a day of work. He would work extra to get his projects done, stellar performance reviews. And when he filed this claim with the insurance company, he told them as much. And he said, well, when I’m outside of work, it’s much harder to do things. And this guy realistically was killing himself to work.
And the insurance company, I don’t know if you can necessarily fault them because it wasn’t impacting his ability to work. These policies aren’t, is it impacting your ability to enjoy your life? It’s, is it impacting the ability to work? So if you do have this history of being able to work, not miss it, not having performance problems, you have a diagnosis, but that diagnosis isn’t equating to a disability for purposes of the policy. So that’s a really fine line.
And it’s difficult because a lot of people, like you said, they don’t want to be on disability. They don’t want to complain. And I can completely respect that stoic mentality of continuing to work and trying to go.
But it’s a double-edged sword. If you don’t think you’re going to be able to work and your only option is this disability policy, you’ve got to work to make sure that – you may not want to talk to your doctor and quote, unquote “complain,” but if you don’t, you’re cutting your– you’re cutting your nose off to spite your face and ability to get the benefit.
So it’s really nuanced. And it’s hard for a lot of people to mentally make that switch of I can’t do this anymore. And that’s hard. So there’s really train hard, fast rules, answers to that. Every case is going to be so unique to the person.
GREGORY DELL: Right. And that’s what makes this so tricky and such a great question is, do I qualify for disability because there’s so many factors – your medical history, your policy, what do you want to get out of the policy when a claimant calls? Yeah, you may qualify, but you may have a limitation that you’re talking about, a mental nervous, a neuromuscular, your age, the benefit amount, Social Security disability set off.
So I’m throwing out all these things that we can just rattle off and we could talk for another three hours about things to be aware of if you qualify. But these are the things when a claimant contacts us, we know the questions to ask to bounce through all these issues quickly. Our job is to maximize the policy for the claimant.
What are your goals? What do you want to get out of it? And then we’ll tell the claimant here’s what can or can’t happen with your policy. And for us, it’s an easy – it’s an easy process to know that.
And in terms of getting the person to be approved, that’s a difficult – it can be a difficult process where a lot of things have to go the claimant’s way. And if something is not right, you guys know the disability insurance company is going to use that as an excuse to deny the claims. So that’s the challenge.
And I hope that the people who are watching this video understand that it’s not as simple as just when you want to get the coverage. So if you need help anywhere in the country, feel free to call us for a free consultation. And we welcome the opportunity to speak with you.
If you are questioning whether or not you qualify for disability income benefits or need assistance with a disability insurance claim, contact any of our disability insurance lawyers for a FREE consultation to discuss how we can assist you.