For ERISA Disability Claims, Forewarned is Forearmed

Employment / Personal Injury / Business

Employees who are thinking of applying for disability benefits must seek guidance while still employed  or run the risk of finding themselves without any income at all.  Too often, employees leave their jobs with the expectation that the disability checks will start coming as soon as they turn in their application.  By the time they come to me, my options to preserve their income have been cut in half. 

As an example, an individual with a degenerative autoimmune disorder was confronted by his boss with complaints about his job performance.  In response, he agreed to “retire” and seek long term disability benefits.  Had he come to see me first, I would have advised him not to leave employment until we had reviewed whether the employer could provide accomodations for his disability as required by the Americans With Disabilities Act.  He may have continued working effectively for awhile and improved his performance with a few changes in his work enviroment.  Second, an early retirement and disability cannot co-exist.  Retirement is a voluntary choice to leave employment permanently, not compelled by a physical condition, and without the expectation to return.  An insurance company will be quick to pick up on any evidence that an employee has elected to retire.

In the case of the client with the autoimmune disorder, the insurance company, while acknowledging his condition, claimed it had not progressed to the point where he was medically disabled from working.  In short, he quit prematurely.  Because he quit while not “disabled” as defined in the policy, he will not be able to apply for disability benefits at anytime in the future when the condition inevitably worsens.  Having “retired” voluntarily, we cannot continue his employment with accomodations until the medical issue is beyond dispute or fault the employer for failing to accomodate him.  Worse still, he cannot claim unemployment benefits because of his voluntary departure.  He has fallen into the crevice between employment and approved disability with his only hope to challenge the disability denial and obtain a reversal, no small undertaking with the law stacked in favor of the insurance companies.

I cannot urge employees strongly enough to seek legal guidance before applying for disability benefits.  Employers are too often glad to assist a disabled employee’s departure and do not advise them that the insurance company, not the employer, determines eligibility for benefits which are not guaranteed.  Seek counsel before you find yourself between a rock and a hard place, unemployed without unemployment or disability benefits and facing the daunting task of getting an insurance company to reverse its decision.

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