Ask A Disability Lawyer

DarrasLaw.com introduces a new feature, "Ask the Disability Lawyer." Send questions to info@darraslaw.com.

Questions:

Q: How do I get a copy of my long-term disability policy? I never received this while I was working. Now that I am off work due to an injury, I would like to get a copy of the policy to see what kind of coverage I have. - Alicia in Spokane Valley, WA.

A: It sounds like you received long-term disability insurance as part of an employee benefit plan. We get this question all the time from hardworking people who never thought they would have to file a disability claim one day, so they never thought to ask for a copy of their long-term disability insurance policy.

If you already filed a claim, call or write to the insurance company (whose name and contact information will be on the claim forms you filled out) and ask for a copy of the policy.

If you have not yet filed a claim, you can take the following steps to get a copy of your policy:

  • Start by asking your manager or employer's human resources department for a copy of your long-term disability policy. Some employers have on-line portals which allow employees to download their benefit plan information. If you are no longer working, you may no longer have access to the portal, so ask your manager or HR to download it for you instead.
  • If your employer says they do not have a copy of the policy (unlikely, but let's give them the benefit of the doubt) ask for the Summary Plan Description. Usually this is a booklet, but sometimes it is just a sheet of paper outlining of your long-term disability insurance coverage. The Summary Plan Description will also give you the Plan Administrator's name and address.
  • Write a letter to the Plan Administrator requesting a complete copy of your long-term disability policy. The request does not have to be worded in any special way, but if you need help writing it, contact DarrasLaw at info@darraslaw.com or call 1-800-458-4577.
  • Send your letter to the Plan Administrator via certified mail with return receipt requested so that you have proof of the date your request was received. If your employer's plan is governed by ERISA, the Plan Administrator must provide you with a copy of the plan documents within 30 days of your written request.

Once you have a copy of your policy, call or email us if you need help interpreting it. DarrasLaw is proud of the fact that we provide free policy analysis and free claim help to the disabled. Having resolved more disability cases nationally than any other firm, it is only right that we should use our experience to give back as much as possible.

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Q: I have been disabled for almost two years, receiving long-term disability benefits with no problems until now. The insurance company says I will be denied soon because I can do other types of work, even though I am clearly disabled from my own job. I have been a software engineer for the last 20 years, so I don't know what other type of work they think I could do. What should I do? - Paul in San Jose, CA.

A: You should immediately request a copy of your long-term disability policy to see how "disability" is defined. In many long-term disability policies, the definition of disability changes after a set period of time. For example, in the first 12 months, 24 month or 60 months, "disability" is defined as the inability to perform your own occupation or "your regular occupation in the national economy." After that period, "disability" is defined as the inability to perform "any occupation."

It is important that we look at how "any occupation" is defined in your long-term disability policy.

  • Some policies specify "any gainful occupation," where gainful means you must be able to earn a certain percentage of your pre-disability earnings. If you used to earn $5000 per month and the policy defines "gainful" as capable of earning 60% of that amount, then the alternative occupations must pay at least $3000 per month. If you can perform other occupations, but none pay that much, then you are still disabled under the policy.
  • Most policies define "any occupation" as any occupation for which you are reasonably qualified by education, training, experience, age and other factors. Let's say you are physically capable of performing the work of a neuropsychologist, but as a software engineer you do not have the PhD, the years of training and the experience to work as a neuropsychologist. You cannot be deemed capable of "any occupation" for which you are not qualified.
  • Many policies define "any occupation" in terms of full-time work only. If you are capable of returning to work in another occupation, but your treating physician restricts or limits you to part-time only, then you are still disabled under the policy. Ask your doctor to document your restrictions and limitations, then send the report to your long-term disability insurance company.

After you receive a copy of your policy, call or email us to discuss your next steps. DarrasLaw is proud of the fact that we provide free policy analysis and free claim help to the disabled. We will certainly help you address the changing definition of disability in your long-term disability policy.

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Q: My doctor refuses to fill out forms for my long term disability claim. The insurance company is threatening to deny my benefits. Is there anything I can do about this?

A: In this day and age, most doctors understand that completing insurance forms is part of providing patient care. Yet some doctors refuse to accept certain types of health insurance. Others refuse patients with any insurance at all, accepting cash patients only. That is a physician's prerogative.

When it comes to long-term disability insurance claims, you may be surprised how many physicians have had bad experiences. Insurance companies are not shy about harassing treating doctors with repeated requests for medical records and disability forms. A common tactic employed by long-term disability carriers is to have an in-house "reviewing" doctor call your treating physician to question her medical judgment. Sometimes the insurance company's "reviewing" physician tries to change your doctor's mind. This is followed up with a letter to your treating physician confirming her alleged agreement that you are less disabled than she originally stated. If your doctor does not respond within a short timeframe, your claim will be denied. Unless your doctor has a good support staff, the requirements can be overwhelming. It's no wonder that many treating physicians just don't want to deal with disability insurance.

If your doctor is one who will not complete forms for health and disability insurance companies, then it is time to find another doctor. Why? Because there is no doubt, your long-term disability claim will be denied unless you have a physician certifying the restrictions and limitations that prevent your return to work. Even if you are completely incapacitated (which is not required by most disability insurance policies), your claim will be denied unless you have "proof of loss" in the form of a physician's certification.

  • Step one is to obtain a copy of your policy, to determine what constitutes "proof of loss." If there are specific requirements to support your disability claim, you must comply.
  • Step two is to find a doctor willing to help you with the requirements of your policy.
    • If your treating physician is a specialist, then you could ask your primary care physician to fill out the disability forms instead. Your primary care doctor will need copies of the specialist's chart notes and reports, plus she will want to examine you before she can complete the insurance company forms.
    • If your primary care physician also refuses to complete your long-term disability insurance forms, it may be easier to find a new primary care doctor instead of a new specialist for your disabling condition.

Once you have a copy of your policy, call or email us if you need help interpreting the "proof of loss" provisions. DarrasLaw is proud of the fact that we provide free claim help and free policy analysis to the disabled.

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Q: I have just been approved for Social Security Disability benefits. Now my long-term disability insurance company has stopped paying. Are they allowed to do this?

A: Most group long-term disability policies contain "offset" provisions. Offsets are dollar-for-dollar reductions in your long-term disability benefit for other types of income you receive while disabled, including Social Security. It is important to obtain a copy of your long-term disability policy and identify which sources of income are considered offsets.

  • For example, is a hardship distribution from your 401(k), 403(b), or 457(b) plan considered an offset? (See http://www.irs.gov/Retirement-Plans/Retirement-Plans-FAQs-regarding-Hardship-Distributions for more information.) If so, you should consider both the tax implications and the offset against your long-term disability benefit before requesting a hardship disbursement. Your may end up with a negative net after both are taken into consideration!
  • If your long-term disability policy does not include an offset for Social Security, then the insurance company should not have reduced your benefit amount. If it is an offset, then a zero benefit is possible. The two most common scenarios in which this happens are:
    • Your Social Security benefit amount (alone or in combination with disability benefits from other sources) is higher than your long-term disability benefit amount AND your long-term disability policy does not have a "minimum benefit" amount.
      • Note: Most long-term disability policies state that there will be a "minimum benefit" regardless of how much offset income you receive. This is typically 10% of your gross benefit or a set amount like $50 per month. Check your policy to see if you should be receiving at least the minimum amount.
    • Your long-term disability insurance carrier has been paying you the full benefit for some time now, which has resulted in an overpayment of benefits. Therefore, the long-term disability insurance company is recouping the overpayment from your net benefits.
      • For example: Your monthly long-term disability benefit before offsets is $2,000. Your long-term disability carrier paid this for a year while you were waiting for Social Security to approve your benefits. Your Social Security benefit is $1,000 beginning six months after you became disabled. You have confirmed this is an offset in the policy. Therefore, your monthly benefit after offsets is $1,000.
        • Total amount the long-term disability carrier actually paid you = $24,000.
        • Total amount they should have paid you, after offsets = $18,000 (full $2,000 for the first six months, then $1,000 for the six months after Social Security began).
        • Overpayment amount = $6,000.
        • Under some policies, the insurance company may recoup the overpayment by withholding your net benefit for the next six months. After that, your benefits will resume at the $1,000 level. The insurance company should have sent you a letter to advise that it is taking such an action. If not, you should consult with a lawyer immediately.

The bottom line is that the terms of your long-term disability insurance policy determine how your benefit will be paid. Once you have a copy of your policy, call or email us if you need help interpreting it. DarrasLaw is proud of the fact that we provide free policy analysis and free claim help to the disabled. Having resolved more disability cases nationally than any other firm, it is only right that we should use our experience to give back as much as possible.

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*IMPORTANT NOTICE: It is impossible to give comprehensive advice over the internet, no matter how well researched. The answers and examples provided above are for informational purposes only. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.