Category Archives: Long-Term Disability Benefits

Can I Work or Collect Unemployment While I Collect Long-Term Disability?

Question: I hurt my back after working as a furniture mover for 15 years, and I can’t go back to work. I have a herniated disc with nerve root compression along with arthritis in several other discs. I can’t lift anything over 10 pounds. I’ve been collecting short-term disability for the past few months, and my long-term disability benefits will kick in next month. But I know already it’s not going to be enough to live on. Can I get a new job while I’m collecting long-term disability benefits? If I can’t find a job, can I collect unemployment?

Answer: Whether you can work and collect long-term disability (LTD) benefits at the same time — or collect unemployment benefits while you’re collecting LTD benefits — depends on your LTD policy, and possibly how long you’ve been collecting LTD benefits. If your LTD insurance policy says that you can collect benefits when you are unable to perform “your regular occupation” or “your own occupation” due to your impairment, injury, or illness, you would be allowed to work at a different type of job while you collect LTD benefits. For instance, you could collect LTD benefits and starting working a desk job  — if your LTD policy pays out when you can’t work your own occupation. The same goes for unemployment benefits. If you are ready, willing, and able to work at least some types of jobs, you can apply for unemployment benefits even though you’re collecting LTD benefits under an “own occupation” policy due to being unable to perform the duties of your regular occupation.

If, however, your long-term disability insurance policy says that you are disabled only if you are unable to perform the duties of “any occupation,” then you cannot work at another type of job or collect unemployment benefits. Most policies that use this definition add that, for a line of work to be able to count as something you could do, it must be a job to which you are reasonably suited “based on your job training, education, or experience.” (For instance, if the only jobs you can now do require  a college education and you don’t have it, you would be considered to be unable to work in any occupation.)

Many employer-provided (ERISA) long-term disability policies start off with an “own occupation” definition of disability and then, after you have been collecting LTD benefits for two years, switch to “any occupation” definition of disability. After the two years, if someone is working or collecting unemployment benefits, your LTD benefits could be terminated because you’ll no longer be considered disabled.

To figure out whether you have an “own occupation” or “any occupation” policy, or whether your policy switches from “own occupation” to “any occupation” after two years, request a copy of your policy or its Summary Plan Description page.

Keep in mind that many insurance policies allow the insurance company to offset long-term disability payments with unemployment benefits. This means that if you’re collecting a certain amount in unemployment benefits, the insurance company can usually deduct that amount from the LTD benefits it pays you. For more information, see Nolo’s article on collecting LTD and unemployment at the same time.

If my doctor says I can’t work, doesn’t that imply I have functional restrictions?

Question: I have degenerative disc disease and a herniated disc, have had spinal fusion surgery, and I still am not able to return to my job. I was hoping that the insurance company would approve me for long-term disability benefits (following the expiration of my short-term benefits). However, the insurance company said I don’t have any continuing restrictions even though my doctor says that I should not return to work yet. I called the insurance company and they said the medical records submitted by my doctor’s office don’t show what restrictions I have. Shouldn’t the off-work order be enough?! 

Answer: Generally a long-term disability insurance company wants objective, comprehensive medical evidence that there are specific functional restrictions that prevent you from returning to work. A doctor’s note that you can’t return to work until your next evaluation, or that you are fully disabled and should not return to work, is not going to cut it. Insurance companies want to know the following:

  • how long you can stand, walk, or sit
  • how much weight you can lift, push, or pull
  • whether you can reach overhead, bend, or stoop
  • whether you can handle small object with your fingers or type
  • how frequently you need to take breaks, and
  • how much time you need to take off work for sick days or hospitalizations.

If your doctor can provide this information and it shows your functional limitations (restrictions) are great enough to keep you from working, you should be able to get approved for long-term disability (LTD). If you apply for Social Security disability insurance (SSDI), the Social Security Administration will want this information as well. The best way to gather this information is to have your doctor fill out a detailed functional capacity report about what you can and cannot do.

Don’t rely on the insurance company to send forms to your doctor to fill out; insurance paperwork isn’t likely to solicit answers to questions in your favor, and it’s not likely to be as comprehensive as a functional capacity form. Plus, you won’t know whether your doctor filled out the forms or instead just sent a short note with an unsupported opinion on your disability.

Nolo has a residual functional capacity form you can give to your doctor to document your restrictions for both your LTD claim and your SSDI claim. The form also asks for clinical findings and test results that back up the doctor’s opinion on your restrictions. Tying this evidence to the doctor’s opinion is key to getting an approval.

Explain to your doctor that the insurance company needs details, hand him or her the form to fill out, and ask the doctor to send you a copy of the filled out form. That will give you the evidence you need.

If you’ve been officially denied, however, you should talk to a disability lawyer before filing an appeal. A lawyer can help you “stack the administrative record” with evidence so that, if you have to file a federal lawsuit, the court will be able to consider all of your evidence (a federal court can’t consider any evidence that wasn’t brought up in an appeal to the insurance company).

If you’re considering applying for SSDI, you may also find this Nolo article on getting disability benefits for back problems helpful.

Can I get long-term disability insurance benefits if my employer fired me and ended my policy?

Question: My employer’s insurance company approved me for short-term disability benefits and I was hoping to get long-term disability benefits when the short-term benefits ran out. But in the mean time my employer laid me off and terminated my disability insurance. Is this legal? Does this mean the insurance company can deny me LTD benefits?

Answer: As long as you were covered by long-term disability (LTD) insurance at the time you became unable to work, you may file for short- or long-term disability benefits, regardless of whether you’re still on your employer’s payroll. The decisive question is whether you were insured on your disability onset date, not whether you’re insured on the date you file your claim.

Think of it this way: If John has a car insurance policy that expires on August 31, he will be covered for damage to his car from a hailstorm that occurred on August 30, even if he’s been on vacation and doesn’t file his claim until September 3, after his policy has expired. Disability insurance works the same way.

Ask your employer for a copy of your LTD plan, which will state the eligibility requirements for both short-term disability and long-term disability coverage. Generally the requirements are the same for both policies. For instance, if the short-term disability plan requires you to work full-time (at least 35 hours per week) to be eligible for benefits, the long-term plan should as well. Make sure that you were working the required number of hours as of the date you filed your short-term disability claim. If you were, you should be eligible for long-term disability benefits as well.

Whether your employer can legally discharge you while you’re on short-term disability is a separate question. It’s important to remember that disability insurance is meant to provide income protection if you become unable to work. It does not offer any measure of job security. Your employer is under no obligation to continue employing you simply because you’re receiving disability benefits. However, there are federal laws that may impact whether your employer can legally fire you, particularly the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).

Job Protection Under the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) allows certain workers to take up to 12 weeks of unpaid, job-protected leave per year to deal with personal or family medical issues. FMLA leave, which often runs concurrently with the receipt of short-term disability benefits, can be used to recuperate from your own illness or injury. While you can’t legally be discharged for as long as you’re on FMLA leave, exceeding twelve weeks of leave, even by a day, leaves you open to termination.

For FMLA to apply, the following two conditions must be met:

  • The business must employ at least 50 individuals working within 75 miles of each other, and
  • The employee must have worked for the employer for at least twelve months, and for 1,250 hours or more over the previous year.

If you wish to take FMLA leave, you should inform your employer as soon as possible that your requested time off is related to a family or personal medical situation. When you return from unpaid leave, your employer must give you back your old position or one that is substantially similar, assuming you can still perform the essential duties of the job.

Even if you’re not entitled to unpaid leave under the FMLA, you may be protected by state laws that extend FMLA-like benefits to employees of small and medium-sized companies. Check with your human resources department, your state’s department of labor, or an employment law attorney to learn more about the job protection laws in your state.

Employment Protection Under the Americans with Disabilities Act

The Americans with Disabilities Act (ADA) requires employers with 15 or more workers to make reasonable accommodations for employees with disabilities. The ADA defines a disability as a physical or mental impairment that “substantially limits a major life activity.”

Under the ADA, an employer must interact with the employee to design accommodations that might allow the disabled employee to continue working. For example, the employer could offer a more flexible schedule, additional unpaid leave, wheelchair ramps, ergonomic furniture, or some other accommodation that might allow the disabled employee to continue to perform the essential duties of the position. The employer need not offer accommodations that would cause the business “undue hardship.” Generally, courts have found that larger companies are better able to absorb the costs of accommodations than small businesses.

If an employer has attempted to make various reasonable accommodations and the individual is still not able to perform the essential duties of the job (or if no reasonable accommodations exist that would allow the individual to work), the ADA does not prevent the employer from firing the disabled employee.

For more information on how the FMLA and ADA interact to provide you with job protection, see Nolo’s article on whether you can get fired while on disability leave.

Wrongful Termination and Denial of Benefits

If you’ve been discharged from a job while on disability leave and you think you should have been protected under the FMLA or ADA, you may want to contact an employment or disability law attorney to discuss your options. You may be entitled to money damages or reinstatement if your employer hasn’t complied with the FMLA, the ADA, or applicable state laws.

Regardless of whether you were wrongfully terminated, however, you should be eligible for long-term disability benefits even though you were let go before your short-term disability benefits ran out. If your employer or its insurance company tries to deny you these benefits, contact an LTD lawyer.

By: Aaron Hotfelder, guest blogger and disability lawyer