What happens if you’re still on long term disability after two years?

What happens if you’re still on long term disability after two years is what we’ll be speaking about in this post.

In the typical claim for Long Term Disability benefits governed by the federal statute commonly referred to as ERISA (Employee Retirement Income Security Act), if benefits are initially approved and you remain disabled, the next important point in your claim will come, typically, after receipt of benefits for 24 months. I say typically because the Plan Documents governing the benefits vary from employer to employer. The following is written based on the standard policies which the law firm of Herbert M. Hill, P.A. reviews. That experience extends to claims arising out of employment throughout the southeastern section of the country. In any event, in all cases, your situation must be tailored to the terms of the governing Plan Documents.

If you have questions about the contents of the “Plan Documents,” please see my writings on that subject found elsewhere on this website.

In any event, after 24 months, two (2) important issues may arise. First, at the 24-month point in time, there typically is a change in the definition of the term “disability” relative the occupation to which it applies Second, there are typically certain medical conditions for which benefits are limited to a 24-month entitlement. I will address the first issue in this writing. The second is addressed elsewhere on this website.

Definition of Disability. During the first two (2) year period of Long Term Disability benefit entitlement, the definition of disability typically provides that you are disabled if you are unable to perform each of the material duties of your own occupation. (The “own occ” phase of the claim.) Thereafter, the definition typically changes to “any occupation for which you are reasonably qualified by way of education, training, and experience.” (The “any occ” phase of the claim.) The insurance company will have one of its “in house” vocational “specialists” perform a review of the medical records and attempt to locate a job you could perform in the “Dictionary of Occupational Titles.” Keep in mind, they do not have to find a job for you, only identify the one you could do. In performing this task, it is the experience of the undersigned that the vocational specialist will “cherry pick” the medical records to understate your limitations, overstate your job skills and then locate a job you have never had any experience doing if it even exists in your locality. Further, they will typically ignore the medications you are required to use to maintain even a modicum of daily functioning. Governing case law requires them to do so but the medications issue is one which is routinely ignored.

There are many other issues arising in connection with a particular issue which has been or will be addressed elsewhere on this website. As an example, those issues include how the term “occupation” is defined and what occupations are reasonable based on education, training or experience (i.e., can a person educated and employed as a professional engineer be considered not disabled because she can perform the job requirements of an office receptionist?).

Insurance companies will typically try to define the claimant’s occupation by use of the definition thereof found in a book entitled “Dictionary of Occupational Titles.” Unfortunately, the definitions found in this “dictionary” are rather generic and do not typically accurately identify all of the requirements of the “Own Occupation” which the claimant is performing. The insurance company will take whatever generic job title the claimant has been given and claim that the job duties are the one listed in the “DOT,” as it is called. More often than not, however, the claimant does far more, typically including whatever the employer needs to be done and the faithful employee does just that. The rub is this issue is not presented until after the employee becomes disabled. Also, after the first two (2) years of disability, the insurance company will use the DOT to identify jobs which the claimant can do as an “any occupation” which would then be relied upon to deny future benefits.

There are different tracks which can be taken to defeat the defenses by the insurance companies. The insurance companies’ own Claims Manual can be helpful. Sometimes it is necessary to fight fire with fire by securing the services of a vocational rehabilitation specialist to demonstrate the faulty reasoning relied upon by the insurance company to deny benefits. However, when these issues arise, it is time, if you have not already done so, the employ the services of an attorney to guide you through the potential pitfalls associated with these issues.

Please keep in mind that the foregoing is not intended as legal advice applicable to any individual person’s unique legal situation. Its sole purpose is to give a general idea of the existing status of the law as it applies to the point of law addressed above. You cannot rely on the foregoing as legal advice. You cannot make legal decisions based on its contents. If you have questions arising out of this point of law, you should contact an attorney who routinely handles claims involving policies of disability insurance. The law offices of Herbert M. Hill, P.A. handles such cases and would welcome the opportunity to discuss your case with you, at no charge. You can contact me at 407-839-0005 or at hmh@herbertmhill.com.

If you would like, after discussing your case, we can set a conference. That conference would be free of charge and you would be under no obligation to hire me nor would you feel any pressure from me to do so.

Herbert M. Hill, P.A. is a law firm located in Orlando, Florida with a practice extending throughout the state of Florida and the southeastern part of the United States. Areas of practice include disability and employee benefit claims of all sorts. The firm handles any claims arising under the Employee Retirement Income Security Act (known and referred to as “ERISA”) for disability benefits, medical benefits, retirement benefits of any sort, including pension, 401k, termination agreements or the like as well as claims arising under private disability policies.