Articles Tagged with disability

Most people with long term disability (“LTD”) insurance obtain that coverage through their employer. Thus, most of us are stuck with whatever insurance company and policy our employer chooses to purchase. And while you might think to yourself, “they’re all the same, so who cares which insurance company my employer decides to go with,” nothing could be further from the truth.

LTD insurance policies vary widely depending on which insurance company is issuing the policy. Some companies offer good, comprehensive coverage that treats every type of disability more or less the same. Under these policies, regardless of whether your disability is due to physical or psychiatric reasons, you will be paid LTD benefits as long as you remain disabled under the terms of the policy.

Most LTD policies, however, will differentiate between physical disabilities and psychiatric disabilities. If your disability is “due to” a mental and nervous condition, or worse yet simply “caused or contributed to by” a mental and nervous condition, most insurers will only pay you LTD benefits for a maximum of 2 years (versus paying until age 65 for a physical disability). This distinction provides LTD insurance companies with one of their favorite tactics: They will cut off benefits for people under the 2 year limitation by arguing that while you might have some physical problems, the real reason you can’t work is because you’re suffering from depression/stress/anxiety.

          Often our clients are prescribed pain medication to help control the symptoms of their disabilities.  It is well recognized that the side effects of pain medication can be disabling. An employee should not be exercising judgment, operating machinery or driving while on pain medication. See, Sabatino v. Liberty Life Assurance Co. of Boston, 286 F. Supp. 2d 1222, 1231 (N.D. Cal. 2003) (insurance company’s reliance on medical opinion “suspect” where it failed to take account of claimant’s “severe and chronic pain and the cognitive impairments” caused by her pain medication); Godfrey v. BellSouth Telecomms., Inc., 89 F.3d 755, 759 (11th Cir. 1996) (decision to deny disability benefits arbitrary where insurer ignored side effect of drowsiness caused by claimant’s medication) and Adams v. Prudential Ins. Co. of America, 280 F. Supp. 2d 731,741 (N.D. Ohio 2003) (insurer’s decision to deny benefits arbitrary and capricious because the insurer ignored cognitive side effects of claimant’s medication).

          Insurers avoid the obvious disability caused by pain medications by utilizing an unfair review technique.  The insurer will employ a physician to review the medical records and the physician will report that “no adverse side effects of the medication were reported by the attending physician.”  This is a misnomer for two reasons: (1) If drowsiness or cognitive impairment is an expected side effect of the medication, it will not be reported as an “adverse” side effect and (2) the failure of one’s physician to record an expected side effect in the records does not mean that it does not exist.

          We recommend that you accurately report medication side effects to your physician.  You can also report that you do not drive while on the medication and whether you need to take a nap or rest as a result of drowsiness. You should ensure that your medical providers’ records are accurate to properly document your disability, including any and all effects of your medications.

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