Hopefully, you took my advice after reading Part I and tried to reach a reasonable accommodation with your employer. For this blog, I’ll assume you made a good faith effort to find a solution that worked and either met with frustration at every step or were ignored completely. (If you cannot work even with an accommodation, then the Americans With Disabilities Act (ADA) doesn’t help you and applying for disability benefits is your only option).
Your effort to reach a reasonable accommodation with your employer should strengthen your long term disability (LTD) application and should be noted in the application. Although not required, it does not hurt to mention any efforts you made at reasonable accommodation in an application for either social security or long term disability benefits. To be entitled to protection under the ADA, a disabled person must be able to work either with or without an accommodation. Therefore, if your employer’s failure to accommodate is an issue, it is important to avoid making factual statements in disability applications that may be construed as demonstrating an inability to work at all.
Before the Supreme Court case of Cleveland v. Policy Management Systems Corp., general statements like “I cannot work any longer” or “I am completely disabled” in a disability application were used to bar a disabled person from suing a former employer for failing to accommodate him under the ADA. Since Cleveland, generalized statements no longer preclude a disabled person from filing a lawsuit under the ADA. However, specific statements of fact still may. Rest assured the insurance company attorneys and the courts will scour benefits applications looking for factual statements which may contradict a disabled person’s claim that he could have continued working with a reasonable accommodation. For example, a nurse who states in a disability application that he cannot stand for more than five minutes nor lift more than five pounds may have his ADA case dismissed because standing for long periods and lifting more than five pounds are typically essential functions of a nursing job. Careful review of a disability application to demonstrate the steps taken to maintain employment and avoid inconsistent factual statements will not only increase the likelihood of receiving benefits, it will deny the employer’s attorney a key argument often raised to dismiss an employee’s ADA claim.
It is not only what you write, but what your doctor writes as well that should be reviewed. Disability benefits applications generally include physicians’ certifications that must be completed by the applicant’s physician. While “check the box” responses may not be given preclusive effect by some courts, the doctor’s specific factual statements as to what the applicant can or cannot do bind the applicant as well if submitted without any clarification or disagreement from the applicant.
During the application process, it is important to produce all relevant medical records and have at least one physician, preferably the specialist treating the disabling condition (e.g. a rheumatologist for rheumatoid arthritis), write a letter stating specifically how the disabling condition prevents you from performing your job. For example, the rheumatologist might write for our nurse that the arthritis prevented him from opening bottles or entering data into a computer. This would not preclude him from later bringing an ADA claim against the employer if the employer refused his requests for voice recognition software for the computer (now readily available and affordable for most employers) or bottles that came with something other than screw-off lids for dispensing medicine.
I do not handle claims to the Social Security Administration for social security disability benefits. Before applying for these benefits, consult an attorney who specializes in social security claims. However, disability insurance companies will often require you to apply for social security benefits which, if granted, will reduce the amount they have to pay you. The insurance companies may even recommend and pay for an attorney to pursue your social security benefits.
While you may provide additional documentation to the insurance company on an internal appeal, it is much more cost effective to marshal all your evidence and provide it with your application. Taking a little more time to properly prepare and submit the application the first time will significantly increase the chances of having your application approved, avoiding the additional time and expense of an appeal, and avoiding problems with a later claim against your employer for a failure to accommodate.
In the final blog for this series, I will discuss what to do if your disability application is denied.
