Legal Issues: Long-Term Disability
Long-term disability (LTD) insurance protects workers in the event they become disabled prior to retirement. Many LTD policies are offered through employers as part of a standard benefits package, while others are purchased directly from insurance companies.
Obtaining benefits for chronic fatigue syndrome (CFS) can be difficult, as insurance companies are reluctant to pay benefits for a condition that can be hard to prove through objective testing.
Proof of Disability
To obtain benefits, claimants must first prove that they are disabled, per the requirements of their individual policies. In the case of CFS, this can be complicated, as some policies require "objective proof" of disability before payment can begin. Other policies have two-year limits for mental or nervous conditions, so many insurers attempt to erroneously classify CFS as a psychological condition to limit their financial liability.
To prove disability, patients must have the support of their physicians. Many find that they must go to expensive CFS specialists for the sole purpose of documenting the disability their personal physicians have observed. Some tests that have been used to objectively prove disability due to CFS are exercise capacity tests, tilt-table tests advanced neurocognitive assessments.
Types of Disability Policies
There are three main types of disability coverage:
- Own-occupation plans compensate when you can't work in your current profession (this is the most lenient definition of disability).
- Education, training and experience plans compensate when you can't work in any job for which you are qualified by education, training and experience.
- Any-occupation plans compensate when you can't work in any job. This definition is similar to Social Security's definition of disability, and is the most stringent type of policy.
Before applying for disability, claimants should obtain a complete copy of their insurance policies, including the definition of disability section, and review it carefully to make certain their claims meet the plans' requirements.
- Document all communications with anyone involved in your LTD claim. All telephone calls should be followed with a letter re-stating the conversation. Keep copies of this and other relevant correspondence, including postmarked envelopes from the insurance company, in a file.
- Most insurers will require that claimants go for an "Independent Medical Exam" (IME). Remember that IMEs are paid by the insurance company to evaluate your disability. It is wise to bring a friend or family member (preferably someone with a medical background) to an IME to document the visit, help ask questions (especially when you are having a bad day cognitively) and check the IME's report for inaccuracies.
- It is common for LTD companies to employ investigators to observe
claimants as part of their fraud-prevention strategy. Don't be surprised if you are videotaped, visited
or secretly watched and make sure to keep brief notes on your daily activities and symptoms in the event
the insurance company uses surveillance to deny or revoke your benefits. (Your doctor may also find these
records helpful in designing your treatment plan.)
Employer-sponsored LTD plans are governed by a federal law called ERISA (Employee Retirement Income Security Act). This is the same law that governs employer-sponsored health and pension plans. Originally written to protect employee benefit plans, it has an unfortunate loophole in that it is legally difficult for dissatisfied claimants to take their cases to court. Many CFS patients who have been denied benefits by their LTD plans have complained
that ERISA gives insurance companies an advantage. Because claimants can usually only recover back benefits
(and not damages), attorneys may be reluctant to take these difficult cases. For more information on
your legal rights and seeking an attorney in LTD cases, see Finding an Attorney.
Privately purchased LTD policies are not subject to ERISA and claimants are permitted to take their cases to court. Unfortunately it is very expensive to pursue legal action against large insurers, so many CFIDS patients find it almost as difficult to pursue lawsuits in these cases as it is in ERISA cases.
Complaints about handling of LTD claims can be made to the U.S. Department of Labor's Employee Benefits Security Administration, your state's insurance commission and your representatives in Congress.
Often, LTD companies require successful claimants to apply for Social Security benefits and will reduce their payments by the amount SSA pays. Having SSA declare you disabled may provide additional support for a LTD claim, even though SSA's definition of disability is different than most private companies'. For this reason, you may wish to submit a SSA disability claim at the same time you submit a request for LTD benefits.
An additional benefit to having SSA disability benefits is that after two years you become eligible for Medicare, the federal government's health insurance program for the elderly and disabled. For CFS patients who have no other medical insurance, this benefit can be as important as the cash benefits they receive from