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The Bar Bulletin
Jax Daily Record Thursday, Mar. 7, 201909:09 AM EST

Commentary.....Long-term disability: What you need to know

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Many claimants are required to apply for Social Security disability and follow strict procedural deadlines.

According to a 2016 survey, approximately 40 percent of Americans have privately purchased disability insurance or a disability policy offered through their employer.

Since Social Security disability benefits, on average, provide approximately one-third of the amount of the average disabled worker’s paycheck, and since many people live paycheck to paycheck without substantial savings, the successful presentation of a long-term disability benefits claim is critical to maintaining the worker’s financial and personal stability.

A 2017 study of bankruptcy court records demonstrated that more than 40 percent of mortgage foreclosures are attributed, at least in part, to disability.

LTD benefits obtained as a benefit of employment are paid to beneficiaries whose disability is expected to last more than a few months.

Generally speaking, most workers may be entitled to LTD benefits for up to two years if they are unable to work at the job they were performing when they became disabled, and even permanently, if the worker’s disability results in an inability to perform any gainful employment.

In almost all cases involving a disability policy purchased by the employer, the worker will be required, as a condition of receiving LTD benefits, to apply for Social Security disability.

However, if the policy is purchased privately, most policies provide disability benefits on the sole basis that the policyholder is unable to perform their past job.

One way that claims for LTD benefits differ from Social Security claims is that they are adversarial cases, where the employer and/or insurance company has claims adjusters, doctors, vocational experts and other experts who provide evidence against the worker’s interest.

So, even though the “HR person” at the company may be, in fact, a “very nice person,” this should not lull the worker into forgetting that, in the end, the employer and its insurance company always will look out for itself first. 

The terms of disability policies differ, but in most cases an LTD case can be successfully filed only after a claim for short-term disability has been successfully filed.

In most cases, the short-term disability claim must be filed within 20 to 30 days of the date that disability is alleged. A claim for LTD benefits is then filed to coincide with the ending of the short-term disability that already has been awarded. 

If the LTD claim is denied, the claimant has 180 days to file an appeal. This may seem like a long time, but all evidence must be submitted when this appeal is filed. If the claim is again denied after the appeal, the worker’s last chance is an appeal to a federal district court.

Because of the strict procedural deadlines, the need to submit evidence in a timely fashion, and the need to develop a persuasive narrative establishing that the worker is “disabled” based on the law and the evidence, it takes careful, strategic planning to anticipate the legal arguments and medical opinions that will be brought to bear against the worker.

A worker who thinks they may be entitled to LTD benefits, in my opinion, needs to be guided from the beginning by someone knowledgeable and dedicated to solving the difficulties of the disabled worker.

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