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Obtaining Disability Benefits

Disability Insurance NY – How to Apply for Disability in NY

Before you go out on NY state disability, you should research all available NY disability benefits. In a nutshell, they include: Social Security Disability benefits; State mandated short term disability benefits; employer short term and long term disability benefits; and privately purchased disability benefits. It is important to determine which benefits are applicable and actively apply for them. Time is often of the essence. Many of these benefits have deadlines that must be met for eligibility purposes.

QSteps that you should take before applying for employer provided disability benefits

Before applying for disability benefits, you should consult several different materials that can be obtained from your employer. First, you should consult your employee handbook. Your employee handbook will usually contain a brief description of the disability benefits (if any) provided by your employer and how to apply for them. It is through this handbook that you can usually determine whether your employer provides long term disability benefits. (Please note that there is no law requiring your employer to provide long term disability benefits).

Second, you should obtain copies of both the disability plan document (which is often an insurance policy) and the summary plan description (“SPD”) of the plan. The plan document is the legal document that states all of your rights and obligations for benefits. The SPD summarizes your rights and also specifies information concerning the administration of the plan. Specifically, the SPD will describe the amount and duration of benefits, waiting periods, application deadlines, limitations on coverage, the type of proof required, and the definition of disability for purposes of eligibility. Upon written request to the administrator of the plan, these documents must be furnished to you. If they are not furnished within 30 days, the plan administrator can be personally liable for statutory penalties of up to $110 per day for each day the documents are not furnished to you.

Third, you should obtain a copy of all relevant application forms. You should review these carefully. They should be completed fully and carefully. An incomplete or misleading response on the form could cause a denial or delay in obtaining benefits. A NY state disability lawyer will be able to ensure that your filling out of these forms are not done in error. When completing the forms, do not be afraid to add riders and attachments. Most forms only give you a small amount of space for your answer. By adding a rider or attachment, you could give a complete response, which will benefit you. Responses that do not give complete information, such as not listing all of your symptoms, benefit the insurance company. Again, a NY state disability lawyer will be able to provide invaluable insight into these details which a layperson such as yourself might miss.

In addition to gathering the above documents, you should very early on consult with your doctors. If you are going to apply for disability benefits, you are going to have to establish that you are disabled. All disability plans have forms for your doctors to complete. They all ask their opinion as to whether you are disabled. If your doctor will not say you are disabled, then you have very little chance of obtaining benefits. You therefore must have a sense that your doctor will support you during the application process.

The next thing a NY state disability lawyer will examine are your medical records. You should also gather all of your medical records, including physician treatment notes, hospital records, and test (blood tests, xrays, MRI’s, etc.) results. You cannot rely on the insurance company to gather all of your medical records for you. The insurance company may request the records of your main doctor, but if you are treated by multiple doctors the insurer will often not obtain all of your records. In that case, you may be missing documents that could have provided strong support for your claim.

Certainly, if and when you consult a NY state disability attorney, having your medical records will save the cost of having the attorney gather them for you.

QThe insurance policy clauses requiring special concern

As any NY disability lawyer will tell you, you should read and become familiar with your entire plan document, as well as the SPD of the Plan. Pay close attention to the following clauses:

Definition of Disability

  • All disability plans provide a definition of disability. To be eligible for benefits, you must be totally disabled within the meaning of the definition in the plan. Common definitions are: Own Occupation; Any Occupation by Reason of Education, Training and Experience; and a Hybrid Definition. How the term “disability” is defined is often the determinative factor for the award benefits.
  • Own Occupation — this is the best definition. Under this definition you are totally disabled if you are unable to perform the material duties of your own or regular occupation. This means your occupation as performed in your local economy, it does not mean your own job at your own company. Therefore, you must establish that your symptoms prevent you from performing your occupation as it would be commonly performed at not only your employer, but at other similar employers.
  • Any Occupation by Education, Training and Experience — under this definition you are totally disabled if you are unable to perform the material duties of any occupation to which you are qualified by reason of education, training or experience. To satisfy this definition, says a NY disability attorney, you have to demonstrate not only that you cannot do your regular job, but that you cannot do any other job to which you are qualified. It is more difficult to satisfy this definition because it opens up a universe of other jobs from which you must establish that you are disabled. A NY disability lawyer will be able to help you through the process of establishing disability.
  • Hybrid Definition — Most disability insurance policies today use a hybrid definition that changes after two years. For the first two years, you will be totally disabled if you are unable to perform the material duties of your own or regular occupation. After two years, the definition of disability often changes to any occupation that you are qualified for by education, training and experience. Therefore, after two years, your claim will be re-reviewed by the insurance company and you will be required to submit a higher level of proof in order to continue receiving benefits. Any higher level of proof in this regard will no doubt entail its own legal ramifications. A NY disability attorney can help you decipher all of this, and continue representing you through this process.

Time Limits

  • Most disability plans provide time limits for applying for benefits. These must be strictly followed. In numerous instances, Courts have affirmed a denial of benefits based entirely on the fact that the time limit was not followed. Check your policy carefully for the time frames in which “Notice of Claim” and “Proof of Claim” must be submitted.
  • Disability plans also provide time limits as to when an internal appeal has to be submitted in the event benefits are denied. Again, these limits should be strictly followed. The more strictly they are followed, the better, as any NY disability lawyer will tell you. Because most plans give you only 180 days to submit an appeal, once you receive a denial of benefits, you must act quickly.
  • Disability plans also frequently contain a time limit as to when a lawsuit must be filed in Court. Many courts have enforced these limitations. They too should be strictly followed.

Elimination Periods

  • Most long term disability plans provide for an elimination period. The elimination period is simply the waiting period before you are eligible for benefits under the plan. Typical elimination periods are either 90 or 180 days. For example, if you become disabled on January 1, you will be eligible for benefits 90 or 180 days later, provided you remain disabled. If you recover from your disability during the elimination period you will not be eligible for any benefits under the long term plan. This will make it difficult for your NY disability attorney to help you go after benefits because you may no longer be qualified for them.

Offset Provisions

  • Most employer-provided disability plans provide for offsets for certain “other income.” What this means is that your monthly benefit will be reduced by your other income. In other words, if the plan would normally pay you a benefit of $2,500 per month and you receive Social Security Disability Income Benefits in the amount of $1,500 per month, the plan will only pay you $1,000 per month. Other income may include workers compensation benefits, social security disability benefits, retirement benefits, money received from a third-party lawsuit, money you receive from a personal insurance policy, and money you earn for any work you do while disabled from your job. The policies of many insurers require you to apply for all these other benefits.
  • Most personally held insurance policies do not have offset provisions.

Mental and Nervous Limitations

  • Many disability plans place a two-year limitation on benefits to individuals who are disabled by mental and nervous disorders. Under these provisions, benefits will stop after two years even if you remain totally disabled.
  • Many insurers take advantage of this provision and try to characterize your otherwise physical disability as a mental and nervous disability. This is often done with individuals who have Chronic Fatigue Syndrome. Some insurers try to characterize the symptoms of CFS as the symptoms of depression.
  • Beware of this trap. If you have a physical disability and are also depressed as a result of being disabled, make sure your doctor clearly indicates in his letter that you are depressed secondarily and as a result of your physical disability. If the depression is put down merely as a second reason for your disability, you may find that the insurer invokes the two-year limitation. Of course, a NY disability lawyer will advise you in further detail regarding how this applies to your situation.

Partial Disability

  • Many disability plans contain provisions providing benefits in the event you are only partially disabled. These provisions vary greatly. Often, you are partially disabled if you can do your job on a part-time basis or if you can work at a full-time job (other than your own) at less pay. The plan will contain a formula describing how your benefit will be calculated.
  • One of the consequences of having a plan that includes partial disability benefits is to limit the instances in which you are entitled to total disability benefits. For instance, if your plan does not have partial disability benefits, you would be considered totally disabled if you could not work full time (even though you could work part time). On the other hand, if your plan has partial disability benefits, you may only be entitled to partial disability benefits. Partial disability benefits are always less than total disability benefits.

 

QSteps that you should take once you begin the application process

First, it cannot be overemphasized that it is never too early to seek professional legal help, especially from a qualified NY disability lawyer. Once your application and doctors letters are submitted, you are effectively bound by them. Legal advice you receive before you apply for benefits is often the most valuable. At this time a NY disability attorney can help you build a solid plan of attack for your application.

Second, the application forms should be filled out completely and carefully. If the forms are not typed, they should be filled in neatly. This is especially true of the forms completed by your doctors and employer. Before sending in the forms they should be proofread and a copy should be retained, as a NY disability attorney will explain.

Third, in addition to the form that your doctors fill out, it is advisable to have your doctor write a narrative report describing your disability. Your doctor’s letter(s) should contain the following: (1) a statement of your relevant medical history; (2) a statement confirming your diagnosis; (3) an explanation of your disease or injury; (4) an opinion as to whether you are totally disabled (this should be tied into how total disability is defined in your plan, i.e. your job or any job); (5) an explanation as to why you cannot do your job — explain how your specific symptoms prevent work; (6) cites to objective evidence in support of disability e.g., results of tests; and (7) a statement of your prognosis.

Fourth, you should gather literature about your illness and how it can be disabling. This is particularly true if you have a rare illness. Do not assume that the plan or insurance company knows the details of each type of illness. They often have to be educated. Sending in articles written by prestigious doctors and institutions can be helpful. These could be researched at your public library or on the Internet. Of course, a NY disability lawyer will be able to further advise you on how to use the specifics of this research to help educate your insurance company.

QPhysical examinations requested by insurers

If your insurance company requests that you submit to a physical examination, do you have to go? The short answer is yes (unless they are sending you to repeated examinations). A NY disability lawyer will explain that most insurance policies include a clause granting the insurer the right to have you submit to a physical examination. If you do not go, the insurance company will probably terminate your benefits for your failure to cooperate. Many courts have upheld an insurer’s right to terminate benefits for failure to cooperate.

Just because you have to go to a physical examination does not mean you go in unprepared. There are certain steps you should take before going to the examination.

First, research the reputation and credentials of the doctor. Ask your doctor if he or she knows of the doctor. Look on the Internet. Check with the American Medical Association. Is the doctor affiliated with a reputable hospital? Does the doctor have publications? Does the doctor have training in the correct specialty? In addition, a NY disability lawyer will have further connections that they can use to help establish whether or not the doctor is right for you.

If your research shows a problem with the doctor’s credentials or specialty, before the examination send the insurer a letter voicing your concern. Creating a paper trail on these issues may help you attack the report of the doctor if it proves to be unfavorable.

Second, if you can, do not go to the examination alone. At a minimum take your spouse or a friend. The best case would be to hire a nurse to observe the examination. Having a witness observing the scope of the examination could be invaluable in attacking the doctor’s report, says a NY disability attorney. We have had clients who were examined in less than 5 minutes. One client did not even take off his coat! A witness will help you prove that the examination was cursory.

If the examination turns out to be cursory, you should obtain a written statement from the witness documenting his or her observations. You should also send a letter to the insurer complaining about the examination.

A nurse can often be found through your doctor or by contacting your local Visiting Nurses Association. A NY disability lawyer at our firm will be able to help you correctly through this process, and avoid pitfalls that might otherwise have not been caught.

QOther tips for the application process

There are some simple and practical steps that you can take that will be of great help if your benefits are eventually denied. Keep a “chron” file. You should keep copies of each letter you send to and receive from the plan and insurance company. Save the envelopes of all letters received from the plan and insurance company. This can help establish a paper trail that a NY disability attorney will be able to use to poke holes in any argument your insurance company may use against you.

It has been our experience that letters are often mailed days or weeks after the date of the letter. Many of these letters are mailed after the expiration of the statutory deadlines but purport to be sent within the deadline. Being able to demonstrate the violation of the deadline could be helpful in the future should litigation become necessary. All letters that you send should be sent certified mail, return receipt requested.

It has been our experience that insurance companies sometimes deny that letters and forms were sent to them. This could be crucially important if the insurance company claims that you did not comply with a deadline. All attachments should be described in your cover letter. If not, you have no proof that a particular attachment was sent to them. You should send a letter to the plan or insurance company confirming the content of any telephone conversations that you have. This adds even more detail to that paper trail, which any NY disability lawyer will enjoy getting their hands on.

It is often helpful to have this extensive paper trail to quote from later. Your NY disability lawyer will have a field day with the insurance company in court, should this paper trail be needed. You should tell your doctor not to talk to the plan or insurance company on the telephone. It has been our experience that insurance companies often misrepresent what your doctor told them.

QRole of A NY Disability Attorney

It is prudent to consult a NY disability lawyer as early as possible. Application forms are drafted for the benefit of insurance companies, not applicants. They often contain landmines for the unwary. Answers that are not carefully crafted can haunt your entire claim. Professional help from a NY disability attorney at our firm is highly recommended.

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