* Attorneys Justin Frankel and Jason Newfield head a disability insurance law firm (www.frankelnewfield.com) that: 1) Works with patients before they file long term disability benefit claims to negotiate medical, paperwork, and insurer minefields; and 2) Represents policyholders whose disability claims have been denied or delayed. They represent many claimants across the US with fibromyalgia (FM), chronic fatigue syndrome (ME/CFS) and other potentially disabling “invisible” illnesses.
Most people with chronic illnesses would prefer to continue to work as much as they possibly can, but their illness often makes a full workload impossible.
In this situation, obtaining Residual or Partial Disability Benefits compensates for a decrease in salary reflecting reduced workload.
Many people don’t know that they may be able to continue working, at a lower salary or pay scale, and still collect some disability insurance benefits. For people with illnesses such as Chronic Fatigue Syndrome (ME/CFS) or fibromyalgia, this is especially important to know.
When a Claim May Be Appropriate
File a claim for Residual or Partial Disability when you are able to work/return to work either part time or full time with a loss of earnings. Be aware that benefits may be limited, so you’ll need to have a very clear understanding of the partial disability section of your benefits contract. (State programs funded by worker pay deductions, like those in California and New York State, for example, cover workers only when they are unable to work.)
A Residual or Partial Disability claim, in most cases, is appropriate when your income has fallen by 20% or more from the pre-disability level, because either:
• You are unable to perform some of your pre-disability duties,
• Or you can perform all of your pre-disability duties, but cannot perform them for as long.
The definition and percentage varies with the insurance policy.
Note that some policies have a “work incentive” provision, whereby you can return to work and collect full long term disability benefits, for a period of time (often for 12 months), before your earnings begin to offset against your LTD benefits.
Detailing Changes in Function & Income
This is an area where a skilled attorney is extremely important to your claim. Someone who is totally unable to walk, for instance, is clearly disabled. But someone who is able to maintain limited hours and function at a different performance level has a tougher claim to prove.
Careful record keeping is especially important with a residual or partial claim.
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• Documenting pre-disability performance levels is critical to showing the difference in performance that resulted from the disability. Depending on the occupation, this change may be measured in sales numbers, productivity, number of patients treated, the change in types of transactions being managed, the number of individuals under management, etc.
• Clarifying the change. It will be important to be able to prove in very concrete terms what change has come about as a result of the disability.
• Creating an accurate definition of the tasks and duties of your occupation is also a key part of a residual or partial disability claim.
If you were formerly a trader responsible for million-dollar hedge fund transactions, but your fibromyalgia has made it impossible to concentrate at a high level, you will need a very clear definition of your responsibilities and tasks.
Insurance companies often rely on outdated documents, or occupational consultants who are hired by the insurance companies to provide a report favorable to their clients only. So consider what your work required you to do when you were not disabled in very detailed terms.
Compensation Must be Evaluated in Relative Terms
If you were a top performing sales person and your illness made it impossible for you to attend networking events, sales meetings, conferences and all of the out-of-office activities that are part of a business-to-business sales person’s success, you will likely need to provide detailed logs of your activities.
Under many Disability Insurance policies, if you are only residually or partially disabled, as opposed to totally disabled, then you must be able to provide evidence that you have suffered a percentage loss of pre-disability income as defined in the policy.
This is different from a total disability claim, where eligibility for benefits is typically determined by a loss of ability to perform all work duties.
In summary, partial or residual disability insurance claims require a different approach than total disability. Working with an experienced professional before filing a claim or during the claims process may make it less stressful.
If you know that you are not able to perform the duties and tasks of your occupation, do not accept a denial from the long term disability insurance company. Remember, they are counting on your giving up the fight.
– Justin Frankel and Jason Newfield, Attorneys at Law, June 2011
[This article is the third in a series. For insights regarding the Long-Term Disability claims process, see Frankel & Newfield’s recent articles, “Avoiding the Disability Claim ‘Brush-Off’ – What You Need to Know,” and “Disability Claim? You’re not Paranoid… They Really Are watching You.”]
Note: This article is published with the intent to provide general information and is not intended, nor should it be used, as a substitute for legal advice rendered by a professional in the context of a specific situation.