In this week's episode listen in as Nationwide ERISA Long Term Disability Attorney Nancy L. Cavey talks about "he Occupational Factors That A Disability Insurance Carrier Considers When You Apply for Your Disability Insurance Benefits – Verifiable Occupational Duties & Professional Licenses" and other issues!
In this week's episode listen in as Nationwide ERISA Long Term Disability Attorney Nancy L. Cavey talks about "he Occupational Factors That A Disability Insurance Carrier Considers When You Apply for Your Disability Insurance Benefits – Verifiable Occupational Duties & Professional Licenses" and other issues!
Welcome to Winning Isnt Easy. I'm Nancy Cavey, national ERISA and Individual Disability Attorney. Before we get started today, I've gotta give you a legal disclaimer. This podcast is not legal advice. The Florida Bar Association says, I've gotta say it. So I have, and nothing will prevent me from giving you an easy to understand overview of the disability insurance world, the games the disability carriers play, and what you need to know to get the disability insurance benefits you deserve. So off we go. Making the decision to reduce your hours and apply for residual disability insurance benefits or to stop work and apply for total disability insurance benefits can be hard. You may think that once you've made that decision and filed your claim, that a check's gonna be overnighted to you immediately after all your doctor supports your claim, even your employer supports your claim. But that's not what happens in the real world. I want you to understand that your initial claim for benefits is reviewed by the disability insurance carrier plan, and they're gonna look at this from three perspectives. The first perspective is going to be, what were the terms of your policy or plan? Two, what's the sufficiency of the medical proof that establishes that you were disabled? As that term is defined by your policy or plan and occupational analysis, as that term is defined by your policy or plan, are you unable to do the material and substantial duties of your occupation? In this multi-part series, I'm gonna concentrate on the occupational evaluation. I want you to understand the factors the disability carriers or plans are likely to consider when you submit your application for benefits. Now, when you applied for your occupational disability insurance benefits, you're going to be asked a number of questions. And what's relevant here is going to be, what were your specific occupational duties just prior to the onset of your disability? Two, what were the specific physical or mental requirements associated with each duty? Three, how long did you perform each of those duties in the course of your average of the average day? Now we've got some more factors to talk about, but let's talk about today how the carrier verifies your occupational duties, the occupational factors that a disability, uh, carrier or plan considers when you apply for your benefits as it relates to the date you claim you're disabled, and what's the status of your license. Got it. All right, before we take a deep dive, let's take a break.
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Nationwide ERISA Attorney Nancy L. Cavey:All right, we're back ready to get started. How a disability carrier verifies your occupational duties. They're gonna contact your employer both in writing and by phone. What your HR department does or does not do with this request can screw up your claim. Often the HR department doesn't have a clue. We know that, but they'd also don't have a clue about what you did, how you did it, or how long you did it. They're gonna make up answers and they're not gonna copy you with those answers to the carrier's questions. And that's gonna put you behind the eight ball. What you need to do if your employer has given the disability carrier plan on the incorrect information. Well, let me tell you, it could be a pain in everybody's, you know what, to try to correct this misinformation. And you may have to do any of the following. You may have to get a copy of your personnel file. You may have to get a copy of your time cards and your pay stubs. You may have to get a copy of your employer's occupational description. You may have to submit a sworn statement in rebuttal of what your employer said or didn't say. You may have to submit a sworn statement, uh, from a co-employee or a supervisor in rebuttal of what your HR department told the disability carrier. Or you may have to hire a lawyer like myself to take on a wrongful claims denial because whatever your employ HR department told them was absolutely wrong. But that was the basis of the claims denial. Got it. All right, let's take a break. Welcome back to Winning Isn't Easy. The occupational factors that a disability insurance carrier or plan considers when you apply for your disability insurance, uh, benefits as a result of your disability, the onset of disability is crucial. You have to prove that you were disabled from performing your occupation as of the date you became disabled. Now, I've talked extensively in earlier videos about the occupational factors that are considered, but the ultimate question is, what was your occupation on the date of disability, which is known as the onset of disability? So let's talk about that concept. The onset of disability can be pretty easy to identify if you've been involved in an accident where you've had an identifiable incident, like a heart attack. However, the onset of disability can be harder to determine if you have a progressive disease or a medical condition like Parkinson's, fibromyalgia, or migraines. You may have worked for years with this medical condition and the issue for the carrier is going to be at what point did you become disabled as that term is defined by the your policy or plant. In other words, why did you work yesterday but you can't work today? What's changed medically? Your medical records should explain what changed. And not that you just decided to stop work. There has to be justification for the date that you picked to be disabled. Now, as your condition has progressed, you may have reduced your hours and that can also cause problems determining the onset of disability. Why is that? Well, let me explain to you how reducing your hours can confuse the date of disability issue and can also potentially destroy your claim. Before you reduce your hours, you need to do two things. First, you need to get out your policy and you need to determine how many hours you have to work to still have coverage. Many policies or plans say that you have to work a minimum of 30 hours per week to maintain your insurance. And if you reduce your hours to let's say 20 per week and then you apply for your benefits, you have no coverage and no coverage means no benefits regardless of how disabled you might be. Now, the second thing you have to do is to discuss with your doctor, in my view, a gradual reduction of your hours from 40 to about 30 hours. As soon as you reduce your hours to 32, I think you should, depending on your policy, uh, your doctor and the facts of your case apply for your, now, if you have a residual disability benefit provision, you're probably eligible for residual benefits once you have a 20% reduction in your earnings or at 32 hours or 30 to 32 hours of work. Again, this is math and it depends on your particular situation, which is another reason, which is a great reason why you need to have an attorney help you figure out the date of disability if you have a progressive medical condition. Now, if you only have total disability coverage and you have a progressive medical condition like MS or fibromyalgia or migraines, you should be applying for benefits, I think at 32 hours per week and then plan to go out completely with your doctor's approval shortly thereafter. I think the gradual reduction of time and duties and pay is better, but again, this depends on the circumstances of your case. If you feel like you're gonna be terminated, if you feel like your doctor is gonna take you out of work now you should probably stop work and apply for benefits and forget all of this gradual, um, slide out of work. So long as your records are explaining why you worked yesterday, um, and why you can't work today and why you can't work the day after, um, why is that important? If you, since you're gonna get terminated, your benefits, disability coverage is going to end the day you're fired and you can't fix that. Now you may say, look, I've been working while I've, I'm disabled and now they're gonna terminate me. I should be entitled to my benefits. Well, that won't work because to be disabled, you generally have to have a loss of earning capacity and then, and it plays into that, um, loss of earnings of at least 20% if you have a residual claim. And it also then plays into the problem of, you worked yesterday and you can't work today and you can't work tomorrow, but you have no coverage. So who cares? This obviously can be tricky and again, another reason why you should be consulting with an experienced ERISA disability attorney. Well, what about changing your job duties? Um, that can be problematic. So your employer comes to you and says, look, we understand you're disabled. You're having trouble doing your duties. Let's be nice. Let's give you different duties. Well, that can be a disaster. Um, you might wanna try to make a deal, um, by changing your duties, by changing your occupation, by changing your pay. Now, how is that gonna cause a problem if you change duties that might change your occupation? Changing your rate of pay or reducing your hours can reduce your benefits. All of this can impact not only the onset of disability, but ultimately whether you're entitled to benefits and how much you get. So don't make a deal before you consult with an experienced to risk a disability attorney, cuz you gotta figure this out based on your policy, based on your wages, based on your medical records, based on what's going down with your employer. So I want you to think hard, hard about the onset date before you file your application for disability benefits. I don't want you to make a mistake cuz that's a mistake that's darn near impossible to fix. Got it. Let's take a break.
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Nationwide ERISA Attorney Nancy L. Cavey:Welcome to Winning Isn't Easy, the Status of Your License. Now, when you apply for your disability, uh, benefits, the disability carrier is going to be doing a number of things to determine your occupation. Uh, and one of the things they're going to be doing is to verify the status of your professional license. Why is that important? Well, let's look at your policy or plan. Many disability policies or plans have specific provisions that say a loss of a license doesn't mean that you're disabled under the terms of the policy or the plan, but the status of your license is going to be an issue in a disability claim. If you're a professional, they're going to check on the status of your license. They're even gonna do a criminal and civil background check. Why are they doing that? Well, they're looking for a reason to deny your claim. So let's say you're under investigation by the Florida Bar because of trust account issues. You've been charged with stealing a client's money or you're under investigation by the Florida Board of Medicine as a physician and you've been charged with over-prescribing medication. Now at the same time, you may have had back pain for years and you've decided that this might be the time to apply for your disability benefits claiming that you're disabled from working as an attorney or as a physician. This happens frequently and the disability carrier is going to question the timing of your disability claim. Are you really disabled or are you looking for a way to support yourself when you lose your license? If your claim timing is suspect, the carrier's gonna question and will probably deny your claim. Now, even though you may be accepted, your benefits are paid. You're on what's called diary. Don't think that the disability carrier is going to stop checking. They are going to continue to check on the status of your license and they're also going to check on the status of any civil or criminal litigation. Why? Two reasons. And this happened to a lawyer in New York who misrepresented to the disability carrier that he wasn't working and they did a check using the pacer, uh, uh, program to check to see whether he had been filing any lawsuits. In the extent of his involvement. Well, he told them he wasn't working, but in fact, pacer showed that he had been involved in 11 cases and had gotten paid and had not reported that information to disability carrier. Ultimately, of course, his benefits were terminated. Now also they're gonna do a criminal check. Why policies or plan provisions may say that you don't get your benefits if you're in the pokey. So no money if you're in the pokey might be a policy provision that could result in you not getting benefits. Why do I say that? Because I've had clients who have been in jail during the course of their disability claim. Some have gotten paid, some haven't been paid, and it depends on the terms of your policy or plan. So don't think that, um, you're gonna get away with collecting benefits while you're in the pokey. You need to look at your policy or plan. Okay? I hope you've enjoyed this episode and you've learned lots about the games that disability carriers play when you apply for benefits in doing an occupational analysis. If you've enjoyed this episode, consider liking our page, leaving a review or sharing it with your friends and family, please, please subscribe to this podcast. That way you're gonna be notified every time a new episode comes out. Please tune in for next week's episode of Winning is Easy. See you then. Bye.