Hot Topics - Disability Claims and Jobs (What You Need to Consider When You Are Thinking about Quitting Your Job and Applying for Disability, or When You Get a New Job)

Welcome to another episode of Winning Isn't Easy with your host, nationwide ERISA Disability attorney Nancy L. Cavey. On this week's episode, we will be talking about jobs, and how they impact disability claims. There are multitudes to consider when applying for disability, and the status of your job is one. Did you know that quitting your job, seeking new employment, or getting a new job can all change the process of a disability claim? No? Well, they can. Tune in to find out other considerations regarding jobs and disability claims.

Winning Isn't Easy is a podcast dedicated to exploring the complexities of the Employee Retirement Income Security Act (ERISA) Long-Term Disability world. Each episode, we delve into the challenges and triumphs of navigating this intricate landscape and bring to light the key issues affecting disabled individuals seeking benefits under ERISA. Get ready to listen in on a captivating listen as we uncover the truth behind Winning Isn't Easy.


Resources Mentioned In This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Transcript

ERISA Disability Attorney Nancy L. Cavey: 0:15

Hey, I'm Nancy Cavey National ERISA, and individual disability attorney. Welcome to Winning Isn't Easy. Before we get started, I have to give you a legal disclaimer. The legal disclaimer is that this podcast isn't legal advice. While I have to say this, cuz the Florida bar association tells me, I have to say this. I will tell you that nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play and what you need to know to get the disability benefits you deserve. So off where we go, there are quite a lot of hot topics in the disability insurance, uh, world that I've been getting calls about. And today I'm gonna be discussing these hot topics and they primarily revolve around, uh, work issues. The work issue is should you quit your job or should you apply for your short term and long term disability benefits? Now what's the strategy behind, um, this is quitting, a good move or a bad move. What you might wanna do instead of quitting, uh, what you have to do before you change jobs to protect yourself from financial ruin and what you need to do. If you have preexisting medical conditions, um, uh, before you make the decision to terminate, uh, your employment, we're also gonna talk about what you should do if your employer tells you not to file for short and long-term disability benefits and just apply for your social security benefits and the real truth about your human resources, uh, department. And then lastly, I'm gonna talk about the three things you have to do before you apply for short and long-term disability benefits. These are questions that I'm getting every day, day in and day out, primarily because of the great resignation that's going on and people deciding whether or not they want to move on to what appears to be a, a greener pasture. When in fact it can be a financial disaster and a medical disaster by making the wrong decision. Let's take a break.

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ERISA Disability Attorney Nancy L. Cavey: 2:36

Welcome back to winning. Isn't easy. That first thing I'm gonna talk about is the question I get all the time. Should I quit my job? Uh, and, and should I apply for my short and long term disability benefits? What's the timing here? Well, let's start out by stepping back. Are you struggling at work? Wondering if you should quit work before you're fired, you don't know whether or not you should apply for your benefits or whether or not you should struggle. Um, well, one of the things I will tell you that you should never ever do is quit. Quitting can be a bad move because that can kill your short and long-term disability claim. Even before you get started. Why? Well, I'm gonna tell you what the reasons are, why quitting is a bad move. And number one is you lose the right to apply for your short term disability benefits because you no longer have coverage. Two, you lose the right to apply for F M L a three. You lose your vacation, PTO and other leave benefits. Four, you leave your group and lose your group. Insurance benefits, five, you lose your long term disability benefits upon resignation six, you lose your long term disability claim because you don't have the requisite loss of wages before you quit. Even though you might have been working while disabled and eight, if you get a new job with a new disability coverage and decide to apply for short and long term disability benefits, your claim will be denied under the preexisting condition clause and nine don't assume that you'll be better off applying for social security disability benefits or that you would get your social security benefits without a fight. Any one of these reasons should stop you from quitting. Now I'm often asked, well, if I shouldn't quit, what should I do next? What should I do instead of quitting? Well, first you should apply for your employer, provided short term disability benefits and apply for F M L a to protect your job. And ultimately if you can return to work, that's great. If not, you need to then apply for your long term disability benefits. And most likely you will be able to maintain your employer provided benefits like life insurance, group, health insurance, and any employer provided contributions to your pension check with your human resources department. For more information. Now, some disability policies require that you attempt to have your employer accommodate your restrictions and limitations as a precondition to ultimately getting your long term disability benefits. So it's crucial that you review your policy or plan closely before you go to the employer and say, I'm having trouble. I need to apply for benefits, or can we work on accommodations? The next question I get in this area is what do I have to do before I change jobs to protect myself from financial ruin because I've got medical problems. Now I'm amazed at the number of people who left their job in 2021, over 3.9 million workers per month left their jobs. That's more than any time in the United States history. And here in 2022, this Exodus is still continuing, but let's talk about the practical problems with this. According to the centers for Medicare and Medicaid services, 50% of non elderly Americans have a preexisting health condition. Now, if you've purchased shorter, long term disability benefits with your current employer, that can help you provide a safety net. If your preexisting condition prevents you from working, but you can lose that safety net. If you leave your current employer and you don't have any disability insurance benefits on your own, uh, to cover your situation or you don't, uh, basically, uh, sort of Cobra, if you will, or convert, uh, your group disability, uh, policy or plan to an individual disability policy plan. And I don't wanna confuse you. You can't quote unquote Cobra, your disability insurance plan. You've gotta convert it, uh, from an indiv, from a group policy to an individual disability policy, you will be offered Cobra coverage, uh, opportunities from your employer. If you terminate your employment so that you can continue to get medical treatment, but you need to understand that both trying to Cobra your medical coverage and then to switch your, uh, group disability insurance benefits to an individual disability policy is really going to be expensive. And that's particularly true. If you have a preexisting condition. Now, I want you to understand the impact of this, because if you think that social security is going to be, uh, your, uh, safe Haven, you're wrong because the amount of the social security benefits can be hard to live on, and you have to be on social security disability benefits for basically 24 months. Uh, and then five months of the waiting period or a total of 29 months before you get insurance, uh, uh, coverage in the form of Medicare. So you can see that this is kind of, uh, complex, and you've got some decisions that you want to make. Certainly you don't wanna quit dude. Right? Got it. All right. Let's take a break. Welcome back to part two of our discussion about, um, whether you should quit and if you aren't gonna quit and shouldn't quit. What do you do about filing a claim for short and long term disability benefits in the last, uh, segment, we talked about the preexisting condition issue that you might have that might prevent you from, uh, quitting your job. So let's expand that because I see this problem arise, uh, particularly in today's environment. You know, when people, uh, are saying, you know, um, this is an opportunity for me to change jobs. People are hiring by the way I like, I like working from home. You know, all the reasons that people are giving these days to terminate their employment and move on. So if you have a preexisting condition, one of the things that you have to understand is that disability insurance plans or policies have a preexisting condition limitation. Um, and the problem that you have is that while a, a plan or policy can't necessarily deny coverage for a preexisting condition, they can limit coverage and they will use a policy provision called the preexisting condition clause. So typically the plan or policy won't cover a preexisting condition. If you have seen a physician or gotten treatment for a preexisting condition, touring a look back period. So they could legally say, during, if you've gotten this during the look back period, that while you have coverage, your medical condition is excluded, uh, and you're not entitled to your disability benefits. So let me give you an example. Let's say you have Parkinson's and you'll leave your employer for a new job. You, part of the great resignation you have signed up for short and long term disability coverage, uh, within your new employer and during the policy period, look back, period, you see a doctor or you get treatment, and then ultimately you file a claim for short or long term disability benefits because of the Parkinson's what's gonna happen to your claim. Now, disability carriers are looking for a reason to deny your, uh, claim. And one of the first denial tools is the pre-existing condition clause. You're gonna look at your medical records and determine whether or not you saw physician or got treatment for your pre-existing Parkinson's. And if so, whether you got that in during what's called the look back period, there's no uniform definition of a look back period. They look at what the date, your coverage became effective. And they'll look back for a certain period of time to see whether or not you got treatment, and whether you became disabled within a certain period of time, um, after getting the, the coverage. So let's add to this example that you are hired on January 1st. And the policy says, look, if you've got treatment in the six months before that, um, and then you file a claim for disability a year after you got your coverage, you are potentially going to be denied your benefits. So January 1st, uh, 2022, your coverage becomes in effect, which what the planner policy says. Look, if you got treatment six months before that, so in, in June of 2021 to December of, uh, 2021, um, your claim potentially could be denied if you file a disability claim within one year of January 1st, 2022, or in other words, January where your first 20, 23. And again, as, as I've said, there's no uniform period of time for any of these particular periods. But the point I'm trying to make is that the disability carrier will look at your medical records and determine whether or not you saw a physician or got treatment for your preexisting Parkinson's during that look back period. And if you did, they will have a legitimate and completely legal way to deny your claim for disability benefits. And you should know that sort of stuff before. You're part of the great resignation and move on because, uh, that's a, a, a, a big impediment in my view to, uh, filing a claim, uh, I'm sorry to, to resigning and, and, and moving on. Now, the reality is that you may not wanna leave your employer, or you can't afford to leave your employer because you can't afford the Cobra coverage for your health insurance premium. Uh, and you can't afford the premium to convert your, uh, disability policy from, uh, an individual disability from a group policy rather to an individual disability policy. So I get that you might be burnt out and you get, you might be ready to switch it up with a new employer, but if you have a significant or potentially disabling medical condition, I don't think this is the time to switch jobs. I think that doing so really exposes yourself to financial ruin. So I'm often asked, well, what should I do if my employer tells me not to file a shorter long-term disability claim, just, you know, just apply for social security benefits. Well, most employers are insured for their short term disability package or benefits for their employees. That means that your benefits are coming out of their pocket. Every penny comes out of their pocket. And what are they trying to do? They're trying to have you resign, go away, get terminated, and then say, huh, you're, you know, you know, go apply for social security benefits. We don't really want you to apply for your short or long-term disability benefits. So if your employer tells you not to file a claim for short term, uh, benefits, they're illegally interfering with your rights to your benefits and potentially they can be sued. What's more important is the situation where your employer in your HR department says, look, I know you're having trouble. Um, we're gonna be nice. Why don't you reduce your hours to something below 30 hours now, why would they say that? Are they really being nice? Well, the answer is, hell no, they're not being nice. What they're trying to do is set you up to lose your coverage by suggesting that you reduce your hours to less than 30 hours per week. Why is that? Well, many policies say you have to be, what's going consider to be a full-time employee and these policies, including your group insurance, uh, and, uh, your, your, uh, life insurance policy. And even your, uh, group health policy may say that you need to be a full-time employee, which is more than 30, uh, hours per week. So if you're hours fall below 30, you can lose your group health, your life, your, your, um, uh, disability benefits, a and in the process, they may also be setting you up for a termination. So the other game they may play is, look, they'll say, you know, you know, you're having trouble. Um, we can reduce your hours and when they reduce your hours and that doesn't work, they may say, you know, you know what, don't you just apply for social security benefits. What we'll, we'll help you with that claim or we'll support your claim? Well, guess what, as an ERISA disability and social security disability attorney, I can tell you it, isn't easy to get social security benefits, and it can take as long, depending on where you live as 30 months to get your benefits. So, in the meantime, who's gonna take care of your bills and your medical care, and what happens to you. Nobody's taking care of you, and it's certainly not your employer. And in the meantime, if you have terminated your employment, you were, and you didn't file a claim or didn't timely file a claim. Um, you may lose your rights to your short and long-term disability benefits. So if your employer tries to give you the run around and tells you not to apply for short or long-term disability, or tells you to just apply for social security or just quit, then you need an attorney immediately. Your employer's trying to screw you out of your disability benefits. Now I'm often asked, should I trust my employer to tell me the truth about your short, my short and long-term disability claim. Um, and that's not necessarily a, an easy question to answer because some employers are truthful, but a lot of employers aren't truthful, but more worse yet. They may believe what they tell you to be true, because that's what they understood and what they understood or what they were told by the agent. Isn't always correct. What's the real truth about your human resources department? The first thing I need to remind you is it's, it is the human resources department. It's not the employee human resource department. Uh, the HR department works for your employer. They really don't work for you. Their job is to protect your employer from you. In other words, the HR department, isn't your friend. Now your employer may have offered you shorter, long term insurance, and you signed it up because it sounded good and they made it sound like it was a great thing. I mean, who wouldn't wanna protect themselves from financial ruin? However, I can assure you that the HR department generally has no clue about the terms of the policy, of the plan and how to file a winning disability insurance claim. I think that there are about 13 things they don't know often. They don't know what the definition of disability is in the policy or plan. They don't know the definition of own occupation. They don't know the definition of any occupation. They don't know when the definition of disability changes from an inability to do your own occupation to any occupation. They don't know whether there's any policy limitations for subjective medical conditions like fibromyalgia migraines, or body pain. They don't know if there's a policy limitation for mental nervous condition. They don't know whether or not you have to apply for social security, disability benefits. They don't know whether your benefits are reduced by the receipt of social security, disability benefits that you or your children might get, or whether your benefits are gonna be reduced by workers' comp benefits, PIP benefits, the proceeds of a personal injury or a malpractice case, the withdrawal of pension benefits and even other disability insurance benefits. And they certainly don't know what it takes to win a social security disability claim. They generally don't know how to protect your group health or life insurance benefits. If you apply for your short and long term disability benefits, they don't generally know whether you can reduce your hours without losing coverage as I've discussed, or whether or not you have a residual disability claim. If you lose, uh, lose wages. And they generally don't know whether your policy or plan requires that you and your employer attempt a workplace modification as part of the short and long term disability claim and what's required, and what they don't know can kill your disability claim and what they tell you may not be right, and that can kill your disability claim. In my view, you need help now, and you need help from someone who's in the trenches day in and day out, dealing with these issues. Don't you think? So let's take a break.

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ERISA Disability Attorney Nancy L. Cavey: 19:41

Welcome back to winning. Isn't easy. Now we've talked about why you should shouldn't quit or why you shouldn't let your employer convince you to reduce your hours to less than 30 hours if you're having trouble at, at work. But here's, I think the most important part of our podcast today, and that is the three things you have to do before you apply for short or long-term disability benefits before you play any game, you get out the direction so you can learn the rules of the game and how to play the game. That's what you need to do before you stop work and apply for your short long-term disability benefits. And in my view, there are three things that you should do before you stop work and apply for benefits. So what are they, number one, ask your employer for a copy of the disability policy or plan. You go to the HR department and you ask for a copy of the policy or plan or better yet. You can get it online. Now your employer has to legally provide you with a copy of the policy of the plan. And if they don't, they can be sued under the Arisa statute that allows a judge to find, find them every day, if they don't produce the policy or plan, and even order them to pay your lawyer's fee for getting those benefits, you don't have to tell them why you want the documents. You've got a legal right to know the terms of the policy or plan. So don't be embarrassed. Don't be afraid. And don't be ashamed to ask if you're pressed for an answer, tell them you're thinking about buying a private disability policy, and the agent wants to see a copy of your current policy or plan that the employers provided that explanation should shut.'em up two, read that policy or plan from cover to cover and outline it. Yeah, I know it sounds like a homework assignment. And guess what it is, there is no uniform disability policy or plan. Each is different. You should read the policy or plan cover to cover, read it a second time and then outlining. So what are you looking for as you're reading it and outlining, these are the things that you're looking for. You wanna know what's the definition of disability in a policy or plan. It's not just you can't work. You have to meet the policy definition of disability. What's the definition of your own occupation? Is it your job as you're performing it for the employer? Is it your job as it's performed in the national economy? Or is it your job or occupation is defined by the dictionary of occupational titles that hasn't been updated in 30 or 40 years? What's the definition of any occupation? In other words, what do you have to prove to get your benefits, uh, from the time your, the definition of disability changes from own occupation to any occupation, to the end of the policy. And that could be to age 65 or 67. You also need to know when does that definition change from own occupation to any occupation, cuz the games are gonna play and start to be played. Prior to that, uh, definition change. You need to know whether there are any policy limitations for subjective medical conditions like fibromyalgia migraines, or body pain. You need to know whether or not there is any policy limitation for mental nervous conditions. It's what I call the Monte Python, wafer thin contribution, definition of mental nervous conditions. Well, what do I mean, what I mean is some policies will say if your disability is caused or contributed to regardless of how thin that contribution might be, your benefits are limited to just two years. And that means that you've gotta do some planning if you will and how you are, what treatment you're getting and what you're telling your doctors. And certainly just before this definition, uh, disability changes and this, um, definition of mental nervous conditions becomes applicable. Now you also need to understand whether you have to apply for your social security disability benefits. You need to understand are your benefits gonna be reduced by the receipt of social security, disability benefits you or your family members get because of your disability? Is it gonna be reduced by workers, compensation, benefits, PIP benefits, the proceeds of a personal injury or a malpractice case, the withdrawal of your pension benefits or even other disability insurance. You gotta understand. If I reduce my hours, am I gonna lose my coverage? If do I have a residual claim or do I have a total claim? In other words, can I, uh, reduce my, uh, once I, I filed my claim, reduce my hours and have a requisite loss of income that will allow me to file a residual claim or does my policy not even provide for residual benefits? I gotta be totally disabled. And you need to understand whether or not your policy or plan requires that you and your employer attempt a workplace modification and what's required and when it needs to be done. So knowing the answer to all those questions will help you understand what you need to prove to get your benefits, how much you're gonna get, how long you're gonna get them and potentially the claims process. Now what's the third thing you need to do. Go get your medical records and review those records. You have the burden to prove you're disabled and unable to perform the material and substantial duties of your occupation as how those terms are defined by the policy, the disability policy, uh, um, carrier or the plan. Administrator's gonna get a copy of your medical records. You need to know what's in them before you stop work and apply for benefits. And I have this issue right now, uh, with a physician who did not look at his medical records before he stopped work and his physician did a pretty bad job about explaining his symptoms. He didn't do a very good job of explaining his functionality at home or how those symptoms impacted his ability to practice medicine. He didn't specifically identify what those material and substantial duties of his occupation were and then tie his medical difficulties to problems. He was having doing that. Um, the medical records are going to be examined to see what the diagnosis is, what the restrictions and limitations are and whether those restrictions and limitations are supported by objective medical findings. They're going to be looking to see whether or not you've got problems with your employer, cuz what they're gonna say is your disability as a result of your, uh, HR problems or problems with your supervisors or coworkers that has nothing to do with the disability. It's an employment issue. They're gonna look to see whether or not you've attempted to work with or without accommodations or reduced hours and what the impact of that was on your ability to work. And they're also gonna be looking to see whether you're exaggerating your problems or symptoms. In other words, you need to know what's in your medical records and you need to know whether your doctor supports your claim and whether your doctor's gonna fill out forms that are going to be required as part of the disability claims process. And if not, you're gonna have to find another doctor who supports your claim and fill out forms. So if you have stopped working and only to find out your doctor doesn't support your claim, you're screwed. Um, so what happens is you really don't want to let these three things destroy your claim and your financial security. You need to take the time to do these things and make an intelligent decision about applying for your disability benefits and certainly making an intelligent decision about not quitting or being part of the, the, uh, you know, the great resignation and moving on these kinds of decisions can destroy your financial security and your ability to provide for yourself and your family and to get medical coverage. So don't make poor decisions. I hope you've enjoyed this week's episode of winning. Isn't easy if you've liked this episode, consider sharing that in a, um, uh, episode with others, leave a review and please subscribe to this podcast. That way you're gonna be notified every time one of our great episodes comes out. I hope you've enjoyed today's episode. Thanks.