Practice Areas - Disability, Social Security & SSD Law
LONG TERM DISABILITY CASES
LONG TERM DISABILITY COVERAGE
(General information about coverage and other related issues)
If you have long term disability coverage (LTD) your LTD plan
will probably pay a monthly benefit for a period of disability
caused by a disease or injury. There is usually an elimination
period. (This is the length of time during a period of disability
that must pass before benefits start.)
What are the tests of disability?
From the date that you first become disabled and until monthly
benefits are payable for 24 months, you may be deemed to be disabled
on any day if:
● you are not able to perform the material duties of
your own occupation solely because of: disease or injury, and
● your work earnings are 80% or less of your adjusted predisability
earnings.
After the first 24 months that any monthly benefits are payable
during a period of disability, you may be deemed to be disabled
on any day if you are not able to work at any reasonable occupation
solely because of:
● disease; or
● injury
If your own occupation requires a professional or occupational
license or certification of any kind, you may not be deemed to
be disabled solely because of the loss of that license or certification.
What will by my monthly benefit?
The scheduled monthly LTD benefit, the maximum monthly benefit,
and the minimum monthly benefit will be shown on the summary
of coverage that you may have been given or have on file with
your employer’s human resources office or at the office
of your plan’s administration.
The monthly benefit is an amount based on your monthly predisability
earnings. Other income benefits, as defined later, are taken
into account.
● If no other income benefits are payable for a given
month, the monthly benefit payable under your plan for that month
probably will be the lesser of the scheduled monthly LTD benefit
and the maximum monthly benefit.
● If other income benefits are payable for a given month,
the monthly benefit payable under your plan for the month may
be the lesser of the scheduled monthly LTD benefit and the maximum
monthly benefit, minus all other income benefits, but not less
that the minimum monthly benefit.
When are benefits payable?
Monthly benefits will be payable if a period of disability:
● starts while you are covered, and
● continues during and past the elimination period.
These benefits are payable after the elimination period ends
for as long as the period of disability continues.
When will my period of disability start or end?
A period of disability starts on the first day you are disabled
as a direct result of a significant change in your physical or
mental condition occurring while you are insured under your plan.
Depending on your plan, you must be under the regular care of
a physician. (You may not be deemed to be under the regular care
of a physician more than 31 days before the date he or she has
seen and treated you in person for the disease or injury that
caused the disability.)
Your period of disability will usually end on the first to occur
of:
● The date your LTD insurer finds you are no longer
disabled or the date you fail to furnish proof that you are disabled.
● The date your LTD insurer finds that you have withheld
information which indicates you are performing, or are capable
of performing the duties of a reasonable occupation.
● The date you refuse to be examined by, or cooperate with,
an independent physician or a licensed or certified health care
practitioner, as requested.
● The date an independent medical exam report or functional
capacity evaluation fails to confirm your disability.
● The date you reach the end of your maximum benefit duration.
● The date you are not undergoing effective treatment for
alcoholism or drug abuse, if your disability is caused to any
extent by alcoholism or drug abuse.
● The date you refuse to cooperate with or accept changes
made to a work site or job process to suit your identified medical
limitations; or adaptive equipment or devices designed to suit
your identified medical limitations; which would enable you to
perform your own occupation or a reasonable occupation (if you
are receiving benefits for being unable to work any reasonable
occupation) and provided that a physician agrees that such charges
or adaptive equipment suits your medical limitations.
● The date you refuse to receive treatment recommended
by your attending physician that in your LTD insurer’s
opinion would cure, correct or limit your disability.
● The date your condition would permit you to work, or
increase the numbers of hours you work, or the number or type
of duties you perform in yoru own occupation, but you refuse
to to do.
● The date of your death.
● The day after your LTD insurer determines you are able
to participate in an approved rehabilitation program and you
refuse to do so.
A period of disability may end after 12 monthly benefits are
payable if it is determined that the disability that the disability
is primarily caused by:
● A mental health or psychiatric condition, including
physical manifestations of these conditions, but excluding those
conditions with demonstrable, structural brain damage; or
● Alcohol and/or drug abuse; or
● any of the following conditions:
● Chronic fatigue syndrome
● Thoracic outlet syndrome
● Fibromialgia
● Temporomandibular joint disorder (TMJ)
● Environmental allergies
● Multiple chemical sensitivities
● Headaches (including, but not limited to functional, migraine,
organic, sinus and tension)
● Seizures (in absence of an additional diagnosis)
● Sleep Apnea
● Sick Building Disease
● Cumulative trauma disorder, overuse syndrome or repetitive stress
disorder including carpal ● tunnel syndrome and ulnar tunnel syndrome
● Meniere’s Disease
● Latex allergies
● Chronic Pain Syndrome
● Myalgia
● Neuralgia
● Myofacial Pain Syndrome
● Athralgias
● Myositis
● Lyme Disease.
There may be exceptions which apply if you are confined as an
inpatient in a hospital or treatment facility for treatment of
that condition at the end of such 12 months.
● If the inpatient confinement lasts less than 30 days,
the period of disability will cease when you are no longer confined.
● If the inpatient confinement lasts 30 days or more, the
period of disability may continue until 90 days after the date
you have not been so continuously confined.
The separate periods of disability section may not apply beyond
12 months to periods of disability which are subject to the above
paragraph.
How separate periods of disability are treated?
Once a period of disability has ended, any new period of disability
probably will be treated separately. See your policy to see if
it will be.
However, 2 or more separate periods of disability due to the
same or related causes will probably be deemed to be one period
of disability and only one elimination period will apply if:
● The separation occurs during the elimination period
and the periods are separated by less than 30 days in a row of
work.
● The separation occurs after the elimination period
and the periods are separated by less than 6 months in a row
of work.
● The first period will not be included if it began
while you were not covered under this LTD plan.
● If you become eligible for coverage under any other
group long term disability benefits plan carried or sponsored
by your employer, this separate periods of disability section
will cease to apply to you.
Do I have other income benefits?
Possibly, depending on your employer or policy, they may be:
● 50% of any award provided under The Jones Act or
The Maritime Doctrine of Maintenance, Wages and Cure.
● Disability, retirement, or unemployment benefits required
or provided for under any law of a government. Examples are:
Unemployment compensation benefits.
● Temporary or permanent, partial or total disability benefits under
any state or federal workers’ compensation law or any other like law,
which are meant to compensate the worker for any one more of the following:
loss of past and future wages; impaired earning capacity; lessened ability
to compete in the open labor market; any degree of permanent impairment; and
any degree of loss of bodily function or capacity.
Benefits under the Federal Social Security Act, the Railroad
Retirement Act, the Canada Pension Plan, and the Quebec Pension
Plan.
Veteran’s benefits.
● Disability or unemployment benefits under any plan
or arrangement of coverage:
as a result of employment by or association with the Employer;
or
as a result of membership in or association with any group, association,
union or other organization.
This includes both, plans that are insured and those that are
not.
● Unreduced retirement benefits for which you are or
may become eligible under a group pension plan at the later of:
age 62, and
the Plan’s Normal Retirement Age,
but only to the extent that such benefits were paid for by an
employer.
● Voluntarily elected retirement benefits received
under any group pension plan, but only to the extent that such
benefits were paid for by an employer.
● Disability payments which result from the act or omission
of any person whose action caused your disability. These payments
may be from insurance or other sources.
● Disability benefits under any group mortgage or group
credit disability plan.
Other income benefits include those, due to your disability
or retirement, which are payable to: you, your spouse, your children,
your dependents.
What is the effect of increases in other income benefits on
monthly benefits?
Increases in the level of other income benefits due to the following
may well be considered “other income benefits”.
● A change in the number of your family members;
● A recomputation or recalculation to correct or adjust
your benefit level as first established for the period of disability;
or
● A change in the severity of your disability.
There may be cost of living increases in the level of other
income benefits received from a government source during a period
of disability. These increases may not be deemed to be “other
income benefits”.
There may be cost of living or general increases in the level
of other income benefits from a non-governmental source during
a period of disability. These increases may not be considered
other income benefits to the extent they are based on the annual
average increase in the Consumer Price Index. See your plan for
details.
Are there other income benefits which usually do not reduce
monthly benefits?
The amount of any retirement or disability benefits you may
have been receiving from the following sources before the date
you became disabled under the LTD plan may not reduce your monthly
benefits:
● Military and other government service pensions;
● retirement benefits from a prior employer;
● veteran’s benefits from a prior employer;
● individual disability income policies; and
● Federal Social Security Act.
Also, the amount of any income or other benefits you receive
from the following sources may not reduce your monthly benefits:
● profit sharing plans;
● thrift plans;
● 401(k) plans;
● Keogh plans;
● employee stock options plans;
● tax sheltered annuity plans;
● severance pay;
● individual disability income policies; or
● individual retirement accounts (IRAs).
Your LTD insurer will probably determine other income benefits
as follows:
Lump Sum and Periodic Payments from any Other Income Benefits
Any lump sum or periodic other income payments that you receive
will be prorated on a monthly basis over the period of time for
which the payment was made. If a period of time is not indicated,
your LTD carrier will probably prorate the payments over a reasonable
period of item, taking into account the expected lenght of disability
benefits and other relevant factors.
That part of the lump sum or periodic payment that is for disability
will be counted, even if it is not specifically apportioned or
identified as such. If there is no proof acceptable to your LTD
insurer as to what that part reasonably is, 50% may be deemed
to be for disability.
Any of these “Other Income Payments” that date back
to a prior date may be allocated on a retroactive basis.
Estimated Payments
The amount of other income benefits for which you appear to
be eligible will be estimated, unless you have signed and returned
a reimbursed agreement to your LTD insurer. This agreement contains
your promise to repay your LTD carrier for any overpayment of
benefits made to you.
If other income benefits are examined, your monthly benefit
will be adjusted when we receive proof:
● of the exact amount awarded; or
● that benefits have been denied after review at the highest
administrative level.
Your LTD carrier may pay you if any underpayment in your monthly
benefit results. You will have to repay your LTD carrier if any
overpayment results. When your LTD has to take legal action against
you to recover any overpayment, you may also have to pay the
LTD carrier’s reasonable attorney’s fees and court
costs, if your LTD carrier prevails.
Does my LTD carrier have the right to be presented with required
proof of income?
Yes. Your LTD carrier probably has the right to require proof
that:
● You, your spouse, child, or dependent has made application
for all other income benefits which you or they are, or may be,
eligible to receive relative to your disability and has made
a timely appeal of any denial through the highest administrative
level; timely appeal means making such an appeal as required,
but in no case later than 60 days from the latest denial;
● The person has furnished proof needed to obtain other
income benefits, which includes, but is not limited to, Workers’ Compensation
Benefits;
● The person has not waived any other income benefits without
your LTD carrier’s written consent; and
● The person has sent copies of the documents to your LTD
carrier showing the effective dates and the amounts of other
income benefits.
In addition to the above, for purposes of Federal Social Security,
when a timely application for benefits has been made and denied,
a request for reconsideration must be made within 60 days after
the denial, unless your LTD carrier states, in writing, that
is does not require you to do so. Also, if the reconsideration
is denied, an application for a hearing before an Administrative
Law Judge must be made within 60 days of that denial unless your
LTD carrier relieves you of that obligation.
Your LTD carrier may also require proof:
● of income you receive from any occupation for compensation
or profit; and
● if your income from any such occupation is 80% or less
of your adjusted predisability earnings, proof that you are unable,
due to disease or injury, to earn more than 80% of your adjusted
predisability earnings.
You may not have to apply for:
● retirement benefits paid only on a reduced basis;
or
● disability benefits under group life insurance if they
would reduce the amount of group life insurance;
but, if you do apply for and receive these benefits, they may
be deemed to be other income benefits for which proof is required.
If you do not furnish proof of other income benefits, your LTD
carrier reserves the right to suspend or adjust benefits by the
estimated amount of such other income benefits.
What if I am accepted in an approved rehabilitation program?
Your LTD carrier may retain the right to evaluate you for participation
in an approved rehabilitation program.
If it does, in your LTD carrier’s judgment, you are able
to participate, the LTD carrier may, in its sole discretion require
you to participate in an approved rehabilitation program.
This plan will pay for all services and supplies, approved in
advance by your LTD carrier, needed in connection with such participation;
except for those for which you can otherwise receive reimbursement
from any third payor, including any governmental benefits to
which you may be entitled.
Will my policy have any exclusions?
Of course, you are dealing with an insurance company. Long term
disability coverage does not usually cover any disability that:
● is due to intentionally self-inflicted injury (while
sane or insane).
● results from your commission of, or attempting to commit,
a criminal act.
● results from driving an automobile while intoxicated.
(“Intoxicated” means: the blood alcohol level of
the driver of the automobile meets or exceeds the level at which
intoxication would be presumed under state law).
● is due to war or any act of war (declared or undeclared).
● is due to: insurrection; rebellion; or taking part in
a riot or civil commotion.
On any day during a period of disability that a person is confined
in a penal or correctional institution for conviction of a crime
or other public offence:
● the person will not be deemed to be disabled; and
● no benefits will be payable.
What about pre-existing conditions:
Usually, no benefit is payable for any disability that is caused
by or contributed to by a “pre-existing condition” and
starts before the end of the first 24 months following your effective
date of coverage, but see your individual plan. Each is different.
A disease or injury is a pre-existing condition if, during the
12 months before your effective date of coverage:
● it was diagnosed or treated; or
● services were received for the diagnosis or treatment
of the disease or injury; or
● you took drugs or medicines prescribed or remmended by
a physician for that condition.
Are there any special rules as to an increase in coverage?
The scheduled benefit may be determined by the benefit amount
in effect immediately before an increase for any disability that
is caused by or contributed to by a “pre-existing condition” and
starts before the end of the first 24 months following the effective
date of an increase in coverage.
A disease or injury may be a pre-existing condition if, during
the 12 months before your effective date of an increase in coverage:
● it was diagnosed or treated; or
● services were received for the diagnosis or treatment
of the disease or injury; or
● you took drugs or medicines prescribed or recommended
by a physician for that condition.
No benefit is payable if the disability is excluded by any other
terms of this plan.
How will my coverage terminate?
Coverage under your plan will probably terminate at the first
to occur of:
● When employment ceases
● When the group contract terminates as to the coverage
● When you are no longer in an eligible class. (This may
apply to all or part of your coverage).
● When you fail to make any required contribution.
Ceasing active work will be deemed to be cessation of employment.
If you are not at work due to one of the following, employment
may be deemed to continue up to the limits shown below.
If you are not at work due to disease or injury, your employment
may be continued until stopped by your employer, but not beyond
12 months from the start of the absence.
If you are not at work due to temporary lay-off or leave of
absence, your employment will be deemed to cease on your last
full day of work before the start of the lay-off or leave of
absence.
In figuring when employment will stop for the purposes of termination
of any coverage, your LTD carrier will rely upon your employer
to notify them. This can be done by telling your LTD carrier
or by stopping premium payments. Your employment may be deemed
to continue beyond any limits shown above if your LTD carrier
and your employer so agree in writing.
May benefits continue after termination?
If your coverage ceases during a period of disability which
began while you had coverage, benefits may be available as long
as your period of disability continues.
Can my coverage be reinstated?
Possibly. It all depends on the terms of your plan. If your
coverage terminates, you may again become covered in accordance
with the terms of your plan; except that:
● If:
you return to active work within 6 months of the date coverage
terminated; and
you request coverage from your employer within 31 days of your
return to active work;
any limitation as to a pre-existing condition will apply only
to the extent it would have applied if your coverage had not
terminated. Also, any period of continuous service required before
your eligibility date will apply only to the extent it would
have applied if coverage had not terminated.
● If:
you return to active work between the 7th and 24th month following
the date coverage terminated; and you request coverage from
your employer within 31 days of your return to active work;
any period of continuous service required before your eligibility
date will apply only to the extent it would have applied if
coverage had not terminated.
How does “prior coverage” affect coverage under
my plan?
Each plan is different. If the coverage of any person under
your plan replaces any prior coverage of the person, the following
may apply.
“Prior coverage” is any plan of group long term
disability coverage that has been replaced by coverage under
part or all of your plan. It must have been sponsored by your
employer who is participating in your plan. The replacement can
be complete or in part for the eligible class to which you belong.
Any such plan is prior coverage if provided by another group
insurance plan.
A person’s coverage under your plan may replace and supersede
any prior coverage. It may be in exchange for everything under
such prior coverage except coverage will not be available as
to a particular period of disability for which a benefit is available
or would be available under the prior coverage in the absence
of coverage under this plan.
As stated earlier, your plan probably has a limitation as to
disability caused by a pre-existing condition.
However, if:
● you had prior coverage on the day before long term
disability coverage took effect; and
● you became covered for this LTD plan on the date it takes
effect;
such limitation may apply until a continuous period of coverage
under the prior coverage and this LTD plan are equal to the lesser
of:
● 24 months; and
● any period of limitation as to a pre-existing condition
remaining under the prior coverage.
Where the limitation no longer applies, the amount of monthly
benefit and the maximum period for which benefits will be payable,
as to a period of disability caused by such pre-existing condition,
will be as provided in this LTD plan.
In some plans, in no even may:
● a benefit be payable as to a period of disability
caused by a pre-existing condition, if the disability is excluded
by any other terms of this LTD plan; or
● a condition be considered to be a pre-existing condition
under this lTD plan if it was not a pre-existing condition under
the prior coverage.
Will my spouse receive a survivor benefit?
A single, lump sum benefit may be paid under the provision of
your plan usually if:
● there is an eligible survivor as defined below and
● a montly benefit was payable under this plan.
The benefit amount will be;
● 6 times the monthly benefit and may not be reduced
by other income benefits, for which you were eligible in the
full month just before the month in which you die.
If you die before you are eligible for one full monthly benefit,
however, the benefit will be:
● 6 times the monthly benefit, not reduced by other
income benefits for which you would have been eligible if you
had not died, for the first full month after the month in which
you die.
An eligible survivor is:
● Your legally married spouse at the date of your death.
● If there is no such spouse, your biological or legally
adopted child who, when you die:
is not married and is depending mainly on you for supports;
and is under age 25. This age limit will not apply if the child
is not capable of self-sustaining employment because of mental
or physical handicap which existed prior to age 25.
See your plan for details as each plan may differ and the list
above is neither comprehensive or inclusive.
How will the survivor benefit usually be paid?
The benefit will be paid as soon as the necessary written proof
of your death and disability status is received.
The benefit may be paid to your eligible surviving spouse, if
any. Otherwise, it may be paid in equal shares to your eligible
surviving children.
If monthly benefit payments are made in amounts greater than
the monthly benefits that you may be entitled to receive, your
LTD carrier has the right to first apply the survivor benefit
to any such overpayment.
Your LTD carrier may pay the benefit to anyone who, in Aetna’s
opinion, is caring for and supporting the eligible survivor;
or, if proper claim is made, your LTD carrier may pay the benefit
to an eligible survivor’s legally appointed guardian or
committee.
How can I effect any assignment of insurance?
You probably cannot. Coverage may be assigned only with the
consent of your LTD carrier.
How and when do I report a claim?
You are required to submit a claim to your LTD carrier by following
the procedure chosen by your employer. If the procedure requires
that claim forms be submitted, they may be obtained at your place
of employment or from the carrier. If the procedure requires
that claim forms be submitted, they may be obtained at your place
of employment or from your LTD carrier. Your claim must give
proof of the nature and extent of the loss. Your LTD carrier
may require copies of documents to support your clam, including
date about any other income benefits. You must also provide your
LTD carrier with authorizations to allow it to investigate your
claim and your eligibility for and the amount of other income
benefits. You must furnish such true and correct information
the LTD carrier may reasonably request.
The deadline for filing a claim for benefits is usually 90 days
after the end fo the elimination period, but this may vary as
to your plan. If, through no fault of your own, you are not able
to meet the deadline for filing a claim, your claim will be accepted
if you file as soon as possible; but not later than 1 year after
the deadline unless you are legally incapacitated. Otherwise,
late claims will probably not be covered.
How benefits will be paid?
Benefits will usually be paid to you at the end of each calendar
month during the period for which benefits are payable. Benefits
for a period less than a month will be prorated. This will be
done on the basis of the ratio, to 30 days, of the days of eligibility
for benefits during the month.
Any unpaid balance at the end of the LTD carrier’s liability
will be paid within 30 days of receipt by the carrier of the
due written proof.
Certain carriers, like Aetna may pay up to $1,000.00 of any
benefit to any of your relatives whom it believes fairly entitled
to it. This can be done if the benefit is payable to you and
you are minor or not able to give a valid release. It can also
be done if a benefit is payable to your estate.
Will I have to go to examinations and evaluations?
Certainly, we are talking about an insurance company. Your LTD
carrier will have the right and opportunity to examine and evaluate
any person who is the basis of any claim at all reasonable times
while that claim is pending or payable. This will be done at
yoru carrier’s expense.
What about legal action?
Usually no legal action can be brought to recover under any
benefit after 3 years from the deadline for filing claims, but
the statutes may differ depending on the policy.
Your LTD carrier will not try to reduce or deny a benefit payment
on the grounds that a condition existed before a person’s
coverage went into effect, if the loss occurs more than 2 years
from the date coverage commenced. This may not apply to conditions
excluded from coverage on the date of the loss.
Is my LTD contract a substitute for Workers’ Compensation
Insurance?
No, probably not. The group contract should not be in lieu of
and should not affect workers’ compensation benefits. However,
any workers’ compensation benefits are considered other
income benefits.
What about multiple coverage?
You probably cannot receive multiple coverage under your plan
because you are connected with more than one employer.
What is I forget or unintentionally misstate a fact?
If the event of a misstatement of any fact affecting your coverage
under your plan, the true facts will be used to determine the
coverage in force.
Please note that in some states, the intentional misstatement
of fact is a felony offense, so always be truthful.
The above information describes the main features of many LTD
plans. Additional provisions and differing provisions may be
described elsewhere in your group contract. If you have any questions
about the terms of your plan or about the proper payment of benefits,
you may obtain more information from your employer or, if you
prefer, from the home office of your LTD insurer. Remember, as
with all group plans, your plan may be changed or discontinued
with respect to all or any claim of employees, so check your
plan yearly.
Will I have continuation of coverage during an approved leave
of absence granted to comply with Federal law?
This continuation of coverage section applies only for the period
of any approved family or medical leave (approved FMLA leave)
required by Family and Medical Leave Act of 1993 (FMLA). If your
employer grants you an approved FMLA leave for a period in excess
of the period required by FMLA, any continuation of coverage
during that excess period may be subject to prior written agreement
between your LTD carrier and yor employer.
If your employer grants you an approved FMLA leave in accordance
with FMLA, your employer may allow you to continue coverage for
which you are covered under the group contract on the day before
the approved FMLA leave states.
At the time you request the leave, you will probably have to
agree to make any contributions required by your employer to
continue coverage. Your employer must then continue to make premium
payments.
Coverage will not be continued beyond the first to occur of:
● The date you are required to make any contribution
and you fail to do so.
● The date your employer determines your approved FMLA
leave is terminated.
● The dte the coverage involved discontinues as to your
eligible class.
If you return to work for your employer following the date your
employer determines the approved FMLA leave is terminated, your
coverage under the group contract should be in force as though
you had continued in active employment rather than going on approved
FMLA leave provided you make request for such coverage within
31 days of the date your employer determines the approved FMLA
leave to be terminated. If you do not make such request within
31 days, coverage probably will again be effective under the
group contract only if and when your LTD coverage gives its written
consent.
What will my claim procedures be?
Claims forms may be obtained at your place of employment. These
forms tell you how and when to file a claim.
Note: If applicable, state law requires the plan to take action
on a claim or appeal within a shorter timeframe, the shorter
period will apply.
How do I file disability claims under the plan?
You may file claims for plan benefits, and appeal adverse claim
decisions, either yourself or through an authorized representative,
preferably an attorney that does this kind of work.
An “authorized representative” means an attorney
or person you authorize, in writing, to act on your behalf. The
plan will also recognize a court order giving a person authority
to submit claims on your behalf.
You will be notified of an adverse benefit determination not
later than 45 days after receipt of the claim. This time period
may be extended up to an additional 30 days due to circumstances
outside the plan’s control. In that case, you will be notified
of the extension before the end of the initial 45 day period.
If a decision cannot be made within this 30 day extension period
due to circumstances outside the plan’s control, the time
period may be extended up to an additional 30 days, in which
case you will be notified before the end of the first 30 day
extension period. The notice of extension will explain the standards
on which entitlement to a benefit are based, the unresolved issues
that prevent a decision, and the additional information needed
to resolve those issues. You will be given at lease 45 days after
receiving the notice to furnish that information.
How much time do I have for the filing of an appeal of an adverse
benefit determination for a disability claim?
You will ordinarily be notified of the decision not later than
45 days after the appeal is received. If special circumstances
require an extension of time of up to an additional 45 days,
you will be notified of such extension during the 45 days following
receipt of your request. The notice will indicate the special
circumstances requiring an extension and the date by which a
decision is expected.
You may submit written comments, documents, records, and other
information relating to your claim, whether or not the comments,
documents, records, or information were submitted in connection
with the initial claim. You may also request that the plan provide
you, free of charge, copies of all documents, records, and other
information relevant to the claim.
Do I have any ERISA rights?
Possibly. It depends if your plan is covered by ERISA or not.
Usually, if ERISA applies, as a participant in the group insurance
plan you are entitled to certain rights and protections under
the Employee Retirement Income Security Act of 1974. ERISA provides
that all plan participants shall be entitled to:
Receive information about your plan and benefits
Examine, without charge, at the plan administrator’s office
and at other specified locations, such as worksites and union
halls, all documents governing the plan, including insurance
contracts, collective bargaining agreements, and a copy of the
latest annual report (Form 5500 Series) that is filed by the
plan with the U.S. Department of Labor and available at the Public
Disclosure Room of the Employee Benefits Security Administration.
Obtain, upon written request to the Plan Administrator, copies
of documents governing the operation of the plan, including insurance
contracts, collective bargaining agreements, and copies of the
latest annual report (Form 550 Series), and an updated summary
plan description. The administrator may make a reasonable charge
for the copies.
Receive a summary of the plan’s annual financial report.
The plan administrator is required by law to furnish each participant
with a copy of this summary annual report.
Prudent actions by plan fiduciaries
In addition to creating rights for plan participants, ERISA
imposes duties upon the people who are responsible for the operation
of the employee benefit plan. The people who operate your plan,
called “fiduciaries” of the plan, have a duty to
do so prudently and in your interest and that of other plan participants
and beneficiaries. No one, including your employer, yoru union,
or any other person, may fire you or otherwise discriminate against
you in any way to prevent you from obtaining a welfare benefit
or exercising your rights under ERISA.
What can I do to enforce my rights?
If your claim for a welfare benefit is denied or ignored, in
whole or in part, you have a right to know why this was done,
to obtain documents relating to the decision without charge,
and to appeal any denial, all within certain time schedules.
Under ERISA there are steps you can take to enforce the above
rights. For instance, if you request materials from the plan
and do not receive them within 30 days you may file suit in a
federal court. In such a case, the court may require the plan
administrator to provide the materials and pay up to $110 a day
until your receive the materials, unless the materials were not
sent because of reasons beyond the control fo the administrator.
If you have a claim for benefits which is denied or ignored,
in whole or in part, you may file suit in a state or federal
court.
If it should happen that plan fiduciaries misuse the plan’s
money or if you are discriminated against for asserting your
rights, you may seek assistance from the U.S. Department of Labor
or you may file suit in a federal court. The court will decide
who should pay court costs and legal fees. If you are successful,
the court may order the person you have sued to pay these costs
and fees. If you lose, the court may order you to pay these costs
and fees, for example, if it finds your claim is frivolous.
To whom do I go for assistance with my questions?
If you have any questions about your plan, you should contact
the plan administrator.
If you have any questions about this statement or about your
rights under ERISA, you should contact:
● the nearest office of the Employee Benefits Security
Administration, U.S. Department of Labor, listed in your telephone
directory; or
● the Division of Technical Assistance and Inquiries, Employee
Benefits Security Administration, U.S. Department of Labor, 200
Constitution Avenue, N.W., Washington, D.C. 20210
You may also obtain certain publications about your rights and
responsibilities under ERISA by calling the publications hotline
of the Employee Benefits Security Administration.
Dictionaries of Long Term Disability Words and Terminologies
The following definitions of certain words and phrases may help
you understand the benefits to which the definitions apply. Some
definitions which apply only to a specific benefit appear in
the benefit section. A definition may appear in a benefit section
and may also appears in the glossary of your plan, the definition
in the benefit section may probably apply in lieu of the definition
in the glossary.
Adjusted Predisability
This is your predisability earnings plus any increase made on
each January 1, starting on the January 1 following 12 months
of a period of disability. The increase on each such January
1 will be by the percentage increase in the Consumer Price Index
rounded to the nearest tenth; but not by more than 10%.
Approved Rehabilitation Program
This is a written program approved by the LTD carrier which
provides for services and supplies that are intended to enable
you to return to work. This program may include, but is not limited
to:
● vocational testing;
● vocational training;
● alternative treatment plans such as:
support groups;
physical therapy;
occupational therapy;
speech therapy;
● workplace modification to the extent not otherwise provided;
● part time employment; and
● job placement.
A rehabilitation program will cease to be an approved rehabilitation
program on the date the LTD carrier withdraws, in writing, its
approval of the program.
Consumer Price Index
The CPI-W, Consumer Price Index for Urban Wage Earners and Clerical
Workers is published by the United States Department of Labor.
If the CPI-W is discontinues or changed, the LTD carrier reserves
the right to use a comparable index.
Effective Treatment of Alcoholism or Drug Abuse
This means a program of alcoholism or drug abuse therapy that
was prescribed and supervised by a physician and either:
● has a follow-up therapy program directed by a physician
on at lease a monthly basis; or
● includes meetings at least twice a month with organizations
devoted to the treatment of alcoholism or drug abuse.
These are not effective treatment:
● Detoxification. This means solely treating the aftereffects
of a specific episode of alcoholism or drug abuse.
● Maintenance care. This means primarily providing an environment
free of alcohol or drugs.
Hospital
This is an institution that:
● mainly provides, on an impatient basis, diagnosis
and therapeutic facilities for surgical and medical diagnosis,
treatment and care of injured and sick persons; and
● is supervised by a staff of physicians; and
● provides 24 hour a day registered nursing (RN) services;
and
● is not mainly a place for rest, for the aged, for drug
addicts, for alcoholics, or a nursing home.
An institution which does not provide complete surgical services,
but which meets all the other testes listed above, will also
be deemed a hospital if:
● it provides services chiefly to patients all of whom
have conditions related either by a medical specialty field or
a specific disease category; and
● while confined, the patient is under regular therapeutic
treatment by a physician for the injury or disease.
Injury
An accidental bodily injury.
Material Duties
These duties that:
● are normally required for the performance of your
own occupation; and
● cannot be reasonably omitted or modified. However, to
be at work in excess of 40 hours per week is not a material duty.
Own Occupation
This is the occupation that you are routinely performing when
your period of disability begins. Your occupation will be viewed
as ti is normally performed in the national economy instead of
how it is performed:
● for your specific employer; or
● at your location or work site; and
● without regard to your specific reporting relationship.
Physician
“Physician” means a person who is a legally qualified
physician. Also, to the extent required by low, a practitioner
who performs a service for which coverage is provided when it
is performed by a physician.
Regular care of a physician means you are attended by a physician:
● who is not you or related to you;
● who is practicing within the scope of his or her license;
● who has the medical training and clinical expertise suitable
to treat your disability condition;
● who specializes in psychiatry, if your disability is
caused, to any extent, by a mental health or psychiatric condition;
and
● whose treatment is:
consistent with the diagnosis of the disabling condition; and
according to guidelines established by medical, research and
rehabilitative organizations; and
administered as often as needed.
Predisability Earnings
This is the amount of salary or wages you were receiving from
an employer participating in the plan on the day before a period
of disability started, calculated on a monthly basis.
It will be figured from the rule below that applies to you.
If you are paid on an annual contract basis, your monthly salary
is 1/12th of your annual contract salary.
If you are paid on an hourly basis, the calculation of your
monthly wages is based on your hourly pay rate multiplied by
the number of hours you are regularly scheduled to work per month;
but not more than 173 hours per month.
If you do not have regular work hours, the calculation of your
monthly salary or wages is based on the average number of hours
you worked per month during the last 12 calendar months (or during
your period of employment if fewer that 12 months); but not more
than 173 hours per month.
Included in salary or wages are:
● Commissions average over the last 12 months of actual
employment or such shorter period if actual employment was for
fewer than 12 months,
● Contributions you make through a salary reduction agreement
with your Employer to any of the following:
An Internal Revenue Code (IRC) Section 125 plan for your fringe
benefits
An IRC 401 (k), 403(b), or 457 deferred compensation arrangement.
An executive nonqualified deferred compensation agreement.
Not included in salary or wages are:
● Awards and bonuses.
● Overtime pay.
● Contributions made by your employer to any deferred compensation
arrangement or pension plan.
A retroactive change in your rate of earnings will not result
in a retroactive change in coverage.
Reasonable Occupation
This is any gainful activity for which you are; or may reasonably
become; fitted by: education; training; or experience; and which
results in, or can be expected to result in; an income of more
than 60% of your adjusted predisability earnings.
Treatment Facility
This is an institution (or distinct part thereof) that is for
the treatment of alcoholism or drug abuse and which meets fully
every one of the following tests:
● It is primarily engaged in providing on a full-time
inpatient basis, a program for diagnosis, evaluation, and treatment
of alcoholism or drug abuse.
● It provides all medical detoxification services on the
premises, 24 hours a day.
● it provides all normal infirmary-level medical services
required during the treatment period, whether or not related
to the alcoholism or drug abuse, on a 24 hour daily basis. Also,
it provides, or has an agreement with a hospital in the area
to provide, any other medical services that may be required during
the treatment period.
● On a continuous 24 hour daily basis, it is under the
supervision of a staff of physicians, and provides skilled nursing
services by licensed nursing personnel under the direction of
a full-time registered graduate nurse.
● It prepares and maintains a written individual plan of
treatment for each patient based on a diagnostic assessment of
the patient’s medical, psychological and social needs with
documentation that the plan is under the supervision of a physician.
● It meets any applicable licensing standards established
by the jurisdiction in which it is located.
What if my long term disability carrier recommends a company
to handle my social security disability case?
You can choose your representative before the Social Security
Administration. Your insurance carrier may tell you that a given
company (often non-attorney representatives who are not licensed
to practice law or to take your case into Federal Court if you
are turned down for Social Security disability benefits) will
represent you free of charge. If so, your policy probably allows
you to obtain representation of your choice for obtaining Social
Security disability benefits. Additionally, most long term disability
policies provide that the largest share of retroactive Social
Security disability benefits you obtain will be owed to the insurance
company and will be reduced by the amount of attorneys fees owed
to your chosen representative. This means essentially that your
attorney’s fees are not paid by you regardless of whether
you choose a representative your long term disability carrier
suggests, or one whom you have found and decided to hire.
Is there a downside to taking the representative offered by
the insurance company?
Yes. When it comes to signing a retainer agreement in a social
security disability case, you might want to ask if the representative
is a licensed attorney. If not, then the representative will
not be able to take an appeal of the denial of benefits to the
highest levels, because only licensed attorneys are permitted
to appear in federal court. Additionally, the representative
may have interests in helping the private insurance company getting
previously paid benefits back from you, creating a conflict of
interest. Attorneys are required to disclose conflicts of interest
to clients, but non attorneys are not required to do so by a
governing code of ethics. Additionally, if your long term disability
carrier decides to stop paying your long term disability benefits
and your non attorney representative succeeds in obtaining your
benefits you will be paying their fees no matter what your long
term disability carrier told you while your long term disability
benefits are being paid. Once your long term disability carrier
drops you or settles with you, it is a whole new ball game. Moreover,
if you hire one representative and then try to hire an attorney
who does SSD and SSI cases, the attorney will be more reluctant
to take on your case, as your earlier appointment will have the
first right to be paid even if your subsequently hired attorney
is the one who wins your case. In essence, your subsequent attorney
knows that he may not be paid or be paid very little if he represents
you. For example, in one of our cases, we were successful in
obtaining past due benefits of $12,000.00 and took the case to
trial. The prior representative’s fee was $2,750.00 and
oru fee was $250.00, even though we expended $500.00 in costs
(the prior representative had spent zero) and despite the fact
that we had expended in excess of 12 hours working the case up
and taking the case to trial. Hence, there is some reluctance
for us to engage clients who have representatives who refuse
to waive their entitlement of fees.
Why shouldn’t I just file for my Social Security
Retirement Benefits early and not file for Social Security
Disability?
When people think of Social Security they think of retirement
benefits. But Social Security also provides financial protection
in the event that you suffer a serious disability, regardless
of your age. This protection is provided under the Social Security
Disability Insurance program (SSDI). Think of Social Security
as an insurance program that you paid for through Social Security
(FICA) taxes that were deducted from your paycheck.
Advantages
There are advantages of receiving Social Security disability
benefits. When people think of Social Security, they think of
retirement benefits. But Social Security also provides financial
protection in the event that you suffer a serious disability,
regardless of your age. This protection is provided under the
Social Security Disability Insurance program (SSDI). Think of
Social Security as an insurance program that you paid for through
Social Security (FICA) taxes that were deducted from your paycheck.
There are a number of advantages to receiving Social Security
disability benefits. Depending on your individual circumstances,
advantages may include:
Higher Social Security retirement benefits: Generally, Social
Security retirement benefits are calculated based on your average
earnings during your working life. For people whose earnings
have been reduced due to disability, this can mean lower retirement
benefits. However, if you are approved for Social Security disability
benefits, your Social Security retirement benefits will be calculated
based on your earnings before your became disabled.
The impact of SSDI on your Social Security retirement benefit
is significant. For example, an individual earning $50,000.00
a year who became disabled at age 40 and remained disabled until
retirement would receive more than $130,000.00 in additional
retirement benefits over a 20-year retirement:
We therefore recommend that you protect your future retirement
benefits by filing for Social Security Disability.
Medicare eligibility: If you are found to be disabled, you will
become eligible for Medicare 24 months after your Social Security
effective date, regardless of your age. This is important, especially
if you do not have or cannot afford private health insurance.
Automatic cost of living increases: Every year, Social Security
gives SSDI recipients an increase in their benefits based on
the Consumer Price Index.
If I decide to file for SSDI, will Social Security disability
insurance help my dependents?
Yes. If you are approved for SSDI benefits, other family members
may also qualify for benefits.
Generally, benefits will be available for:
- children under 19 who have not finished high school
- a spouse who is caring for a child under the age of 16
- a spouse over age 62
To avoid unnecessary delays, apply for SSDI dependent benefits
at the same time you are applying for your own benefits.
If I am receiving Long Term Disability Insurance Benefits from
an insurer, how will Social Security disability benefits affect
my Long Term Disability benefits?
If you are approved for Social Security disability benefits,
your disability payments from your Long Term Disability Insurer
probably will be reduced by the amount you and any dependents
receive under Social Security. In other words, you will continue
to receive the same total amount of monthly benefits, but the
money will come from two sources.
Typically you will receive a large retroactive payment from
Social Security shortly after your claim is approved. Your Long
Term Disability insurer considers this money essentially to be
money that the Long Term Disability insurer advanced to you while
you were awaiting Social Security’s decision. Usually you
must pay it back to the Long Term Disability insurer immediately
after you receive it from the Social Security Administration.
While your disability benefits from the Long Term Disability
carrier probably will be reduced once you are awarded SSDI, the
Social Security Cost of Living increases will be yours to keep.
Over time, the value of those increases can be significant. For
example, an individual earning $50,000.00 a year who became disabled
at age 40 and remained disabled until retirement would receive
over $238,000 in additional benefits. Ultimately, Social Security
cost of living adjustment adds money to your pocket each year.
If I am receiving Long Term Disability benefits, how do I apply
for Social Security benefits?
You can apply for benefits either by calling 1-800-772-1213
or by contacting your local Social Security office. There are
1,300 Social Security offices throughout the United States.
A representative from Social Security will interview you and
complete the written application for you if you cannot travel
to your local Social Security office. You can also apply for
Social Security Disability on line.
Some helpful web sites are:
Social Security Online - www.ssa.gov
Office of Employment Support Programs - Information about work
incentive programs; www.ssa.gov/work
Office of Disability - Comprehensive information about Social
Security disability benefits programs: www.ssa.gov/disability/3368/
Can’t I just wait or should I apply
for Social Security Disability right away?
No matter what your circumstances, you should apply for Social
Security disability benefits immediately. Social Security will
pay benefits retroactively for 12 months prior to your filing
date. By waiting, you may lose retroactive benefits and delay
your entitlement to Medicare. Moreover, even though you have
paid into the system, you are not insured forever and eligibility
for SSD benefits will evaporate if you are not found to be disabled
prior to your date of being last insured (usually 4 to 5 years
after you were last gainfully employed). Finally, waiting may
make it more difficult to gather the information that you need
to support your claim. In addition, waiting may make it more
difficult to gather the information that you need to support
your claim.
If I have been found to be disabilty by my Long Term Disability
Carrier, what are my chances of receiving Social Security benefits?
Your chances are excellent. More than 90 percent of individuals
receiving long term disability benefits from some Long Term Disability
insurers are eventually awarded Social Security disability benefits.
However, Social Security initially denies more than 60 percent
of the applications it receives. But, it pays to be persistent
- most of those applicants are awarded benefits throught he appeals
process.
Here’s how it works:
1. Your initial application for benefits will be reviewed within
three to four months.
2. If your application is denied, you may request a Reconsideration.
This is a review by a different person at the Social Security
Administration and it generally takes less than two months.
3. If Social Security continues to deny your claim, you can appeal
to an Administrative Law Judge. Don’t be intimidated by
this prospect. Nearly 60 percent of claimants who take this step
are awarded benefits.
4. Plus, you have 60 days to appeal any decisions, so do not
wait.
Do I need to hire a lawyer to help me through the application
process?
Beware if your Long Term Disability cse manager believes legal
assistance is necessary. Even though your Long Term Disability
carrier may provide it, and may claim to pay for it, in general,
we recommend retaining an attorney, especially if your case will
be heard by an Administrative Law Judge. You should not hire
anyone but an attorney who is a member of the Federal Bar and
is certified by a United States Court of Appeals and the United
States Supreme Court so that attorney can represent your interests
all the way. Qualified attorneys are very reluctant to take on
cases other attorneys or representatives have handled because
of the Federal fee cap and having a share or split limited fees
with unsuccessful or unqualified representatives or attorneys.
Will I lose my Social Security disability benefits if I return
to work?
Not necessarily. You can continue to receive Social Security
benefits for at least nine months after you return to work. If
you can’t continue to work beyond this nine-month period,
your Social Security benefits will continue.
In addition, your Medicare will continue for at least 8 ½ years
after you return to work. These work incentives allow you to
test your ability to work without fear of losing your benefits.
For more information regarding work incentives, see the “Red
Book on Work Incentives” published by the SSA - www.ssa.gov/work/ResoucesToolkit/redbook_page.html.
If I want to apply for SSDI benefits, what are my next steps?
To expedite your SSDI claim, gather the following information:
● Your Social Security number.
● Contact information for doctors and hospitals that have
treated you, including dates.
● Your most recent W2.
Call 1-800-772-1213 or contact your local Social Security office
to apply for benefits.
Apply for dependent SSDI benefits at the same time.
Submit the following documents to your Long Term Disability
case manager.
● Social Security Reimbursement Agreement
● Authorization to Release Social Security Claim Related
Information
● Family Information Questionnaire
● Your receipt of application from Social Security
Call your Long Term Disability case manager if you have any
questions or concerns about applying for SSDI benefits.
Be persistent. Social Security disability benefits can help
you and your family significantly.
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