From Diagnosis to Disability: Working While Disabled- How Will It Affect My Disability Claim?

Career and family are the two poles about which many of us organize our life.  Losing the pole of work is one of the most distressing consequences of a degenerative condition.  Rather than being outward facing to meet the needs of others (clients, supervisors, co-workers), patients with degenerative diseases are forced inward to focus on healing and coping.  The financial costs of going on disability insurance, which usually pays 60% of income, can make going on disability a difficult decision, particularly if one has children in college, or is dealing with the dual roles of caregiver for one’s children, and one’s parents.  Working while disabled can affect your disability claim, though.  Clients in my long-term disability insurance practice in Connecticut regularly confront the consequences of working while disabled in ERISA benefit appeals and ERISA benefits lawsuit.  

Many people with degenerative diseases, therefore, work as long as they can.  They will make extraordinary efforts to maintain a busy travel schedule even when chronic back pain makes sitting for more than an hour excruciating.  They work longer hours to get the same work done to cope with the cognitive effects of multiple sclerosis.  They ask for duties to be shifted to other employees to deal with a lifting restriction.

What are the consequences to your long-term disability benefits if you work while you are disabled?

• Partial Disability Benefits.  If you have a policy or plan that provides for partial disability benefits, you can be in good shape.  Under such a provision, if you work part-time or less productively as a result of the disability and your income declines, you can get a partial benefit that makes up all or much of the decline in income.  These provisions care often included in private disability policies.  You can reduce your hours and duties, reduce your pay, and replace all or most of the lost income with a partial disability benefit.  Since your employer can pay you for the reduced value you are bringing in, it is more likely that they will keep you on.  This is a great provision, but the formulae for calculating the benefit for a given level of income can be complicated, so it may be useful to consult with an ERISA benefits attorney if you have any questions about it.  

• Will The Insurer Decide You Are Not Disabled if You Are Working?  One of the most unfair consequences of working while disabled is that the insurer may conclude that if you are working, then you can’t be disabled. For instance, let’s say your medical records reflect a level of impairment in May 2013 that could support a finding of disability, and the records for each month after report that you are “stable.”  If you keep working until May 2014, the insurer could say that the fact that you did work for a year shows that you are not disabled.  The insurer may say the medical records reflect no change in condition that could explain why you could do the job from May 2013, but could no longer perform it in 2014.  Some courts haven’t been fooled by this, and realize that some people make heroic efforts to remain in the jobs even though they are disabled. Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, (7th Cir. Ill. 2003) 

What Should You Do To Protect Your Right to Benefits when Working While Disabled?

Whether you are planning to receive partial disability benefits, or just trying to avoid the insurer claiming that you are not disabled because you have worked for your disability, you should do the same thing to make sure working while disabled doesn’t hurt your long-term disability insurance claim:

• Talk to your doctor about how the impairments are affecting your work, and make sure he records it in the medical record.  Here’s a link to an article I wrote on the issue: Making Your Medical Records Work For You
• Keep a log of the difficulties your job gives you.  Make sure you do this particularly if you are doing some activity that could be argued is inconsistent with your disabilities.  For instance, if you take a long business trip, make sure you make a record that you had to take two sick days after the trip to recover.  Then, when the insurer it up in claiming that it shows you can work full-time, you will have a record to refute it.

Don’t let working while disabled turn into not working and not getting long-term disability benefits.  Talking to your doctor and keeping a log will make it more likely you will prevail on an initial claim for log-term disability benefits, in an appeal of the denial with the insurer or plan, and in any ERISA benefits law suit you file.

Other Posts in the Diagnosis to Disability Series

Diagnosis to LTD Application: Six Things to Consider

When Should You Tell Your Employer About Your Chronic Condition?

Reasonable Accommodation Can Keep You At Work