Employment Disability – ERISA

Disability Insurance Through Your Employer – Short Term Disability and Long Term Disability

There are several types of insurance and benefits programs available to people struggling with disabilities. Many people are familiar with the Social Security Administration’s programs (SSDI and SSI). But employers also often provide their employees short term and long term disability insurance benefits. These benefits work in a way that is similar way to health insurance. So long as the premium is paid on a regular basis, the employee is eligible for benefits in case he or she becomes disabled.

Eligibility for these programs varies, but the insurer will always require the employee to provide (or allow the insurer to request from the employee’s physicians) medical records showing that the employee is unable to perform his or her job. After the insurer receives and reviews these records, it decides whether the employee is entitled to receive benefits as a result of the disability.

These employer-based disability insurance programs are governed by different rules than SSDI and SSI. Perhaps the most important difference is that the insurance company ordinarily exercises a great deal of discretion in its decision to award or deny benefits to the employee. In other words, the insurer itself evaluates the employee’s medical records and weighs the evidence in its decision whether or not to pay the employee.

What can cause an insurer to deny benefits?

One of the most common reasons insurers deny benefits has to do with the evidence of the disability. Insurers require objective evidence of an employee’s disability. In other words, insurers will investigate the employee’s medical records for tests and measurable forms of evidence that document the employee’s impairments.  If the insurer does not find objective evidence of the employee’s impairments, it is likely to deny the claim for disability benefits.

Objective evidence is to be contrasted with subjective evidence. Subjective evidence consists of statements and complaints made by the person suffering from a disability. By themselves, the statements and complaints do not serve as proof of an impairment. For example, the person suffering from a disability may inform his or her doctor that he or she experiences back pain. Subjective statements are sometimes verifiable or quantifiable. The person experiencing back pain may undergo tests that reveal abnormal or damaged discs in his or her back. However, in other cases there might not be objective evidence corroborating the person’s subjective complaints. This is common in cases involving chronic fatigue, fibromyalgia, headaches, and sometimes in the early stages of multiple sclerosis.

What can you do?

In cases lacking objective evidence, an employee can improve his or her chances of receiving benefits by explaining in detail to his or her physician in detail the symptoms he or she is experiencing. It is important to be complete and truthful. The physician should be informed of all information about any pain, cognitive difficulties, difficulty moving, and difficulty remaining seated. While insurers may still choose to gloss over these statements (writing them off as mere subjective complaints), they are a necessary minimum to establishing a successful claim for benefits. The statements are also likely to be taken more seriously by the insurer if they were made well before the employee applied for disability benefits. In other words, the insurer may take into account an employee’s motivation for making statements.

Insurers also conduct surveillance on employees seeking benefits. While it may sound shocking, it is common in long term disability cases. If the insurer discovers that the employee behaved in a way that that insurer interprets as being inconsistent with the employee’s subjective complaints, the insurer will use that inconsistency as a reason to deny benefits. The private investigators used by insurers will observe the employee around the employee’s home and when he or she is in a public place.

An insurer who is adamant on denying an employee’s claim for benefits will often be able to do so (at least at first). However, the insurer may later change its tune if the employee took adequate precautions. Those precautions include speaking to physicians at the early stages of an impairment, providing those physicians complete information, remaining attentive to symptoms, and being sensitive to the fact that the insurer’s investigators may be observing every move.