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What You Should Know About Disability Benefits

by Gerald B. Kagan, ESQ

Cancer has temporarily interrupted your career. Treatment is proceeding successfully, but you can’t work. Fortunately, you are entitled to disability benefits through your prior employer’s insurance. You apply and provide required physician information. Surely, the benefits will be approved, right? Wrong.

Or perhaps you currently receive benefits and you still can’t work although your cancer is in remission. Your benefits will continue until you can return to work, right? Wrong again.

Disability insurers regularly deny and terminate disability benefits based on improbable theories rather than facts. Many people don’t challenge the insurer’s action because they are too ill or believe that it would involve too much time and expense.

The law is skewed against those entitled to benefits under employer-sponsored disability plans. Successful legislative lobbying, among other things, has morphed The Employee Retirement and Income Security Act of 1974, a federal law initially intended to protect pensions, to one that shelters insurers from most legal challenges to their actions. Insurers often feel secure in denying or terminating benefits regardless of the merits. However, there are a few things you can do to maximize your chances of obtaining and maintaining your benefits.

Avoid talking with insurance company personnel.
The claims representative is most likely trying to elicit information to undermine your claim. Communications with insurers should be in writing. You should have assistance when communicating with the insurer.

Make sure your doctor carefully completes required forms and avoids sending office notes.
A carefully drafted summary letter is preferable to the sending of illegible notes. Insurers will take snippets of notes, often out of context, and use them to justify a denial. You should ask your doctor to place a notation on your file that states it is not to be copied without prior review by the doctor. Your doctors should only respond to questions within their specialty and avoid “hard and fast” prognoses and statements of limitations. For example, your doctor should state, “the patient is unable to work until condition is stabilized,” rather than “patient can return to work in three months.”

Schedule regular appointments with your doctor, see a specialist if appropriate, and obtain objective tests and expert opinions.
You must be under the regular care of a doctor to remain eligible for benefits. So set up your next appointment before leaving the doctor’s office. Because your doctor’s opinions don’t get preference over those of the insurance company’s “hired guns,” you may need additional expert opinions.

Your doctor should always separate your emotional symptoms, such as anxiety and depression, from the physical impairments, which are the primary cause of your disability.
Insurers will claim that mental problems, which often exclude or limit benefits, are the primary cause of your disability. It is important to know that a particular disease such as cancer is not what qualifies you for benefits. Rather, it is your limitations caused by the condition and the restrictions imposed on you that will govern that determination.

Find a knowledgeable patient advocate.
You need someone to “quarterback” the efforts to retain your benefits and to deal with physicians and the insurance companies. An advocate knows what to say and do and how to plan a strategy geared for success. Doctors usually have your best interest at heart, but they are simply too busy to consider the ramifications of their responses to insurance companies. Too often, what the doctor thinks is support for your claim is used to justify its denial. Find an advocate who will not charge you anything unless your benefits are granted or restored.

As you know, remission of a cancer is not a cure. However, insurers will take the position that once your condition is in remission, you are no longer eligible for benefits. Once canceled, benefits cannot generally be restored, even if your cancer again becomes identifiable. The insurer’s position is often faulty and can be challenged.

You should determine whether you are eligible for short-term disability benefits, available in certain states, and social security disability insurance. If you can’t work, you need financial assistance to survive while you deal with your medical problems. If disability benefits are available to you, you should receive them. Do not unwittingly help the insurer make its argument for denial. Understand your rights and follow through to demand them.

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