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Sunday, March 22, 2015

Request Reasonable Accommodation: Show You Can’t Work, Not That You Don’t Want to

Requesting reasonable accommodation can help get LTD benefits, or win an appeal of a denial of LTD benefits.  In my prior post, I discussed how exercising your rights under the Americans with Disabilities Act to request reasonable accommodation can help you remain in your job when your medical condition impairs your ability to perform some aspects of your job, but you can still perform the essential functions of your position.  In this post, I’ll discuss the effect a request for reasonable accommodation can have on your application for disability insurance benefits under either an ERISA group LTD policy or a private disability policy under Connecticut law.

Applying for reasonable accommodation when you are still working can help you two ways:

  • First, under some disability policies, you are not considered disabled if you can so your job with reasonable accommodation.  If there is a reasonable accommodation that the insurer believes would allow you to keep doing your job, then you won’t be considered to be disabled.  For instance, if the insurer's physician decides you can do your job if you get up and move around every hour, then you won’t be disabled even if you can’t sit all day.  If, however, you have tried the reasonable accommodation when you are still working and it didn't work, you will have a basis to refute the insurer’s reasonable accommodation argument.
  • Second, doing everything you can to stay in your job, including requesting reasonable accommodation, shows the insurer that you are only applying for LTD benefits because can’t work, not because you don’t want to work.  Insurers are always on the watch for claimants who are interested in “secondary gain,” that is, patients who report impairments to get some other benefit from claiming impairments (such as getting LTD benefits) rather than to receive treatment.  You have to be particularly careful of this if your medical records contain statements that you hate your job, it is causing you stress, you don’t like your supervisor, or you want to spend more time with you kids.  You don’t want to raise issues about your motivation for applying for benefits.

As discussed in the prior post, reasonable accommodation can be complicated, and depends very much on your particular impairments and the actual requirements of your particular position.  Having an attorney who knows federal and Connecticut employment laws, and who can handle a Connecticut LTD appeal or a LTD suit in the Connecticut district court can be helpful.  Whether you use an attorney or not, asking for reasonable accommodation while you are still working can help you qualify as disabled, and will certainly help show that you aren’t applying for benefits simply to avoid working.

Thursday, March 19, 2015

From Diagnosis to Disability: Reasonable Accommodation Can Help Keep You At Work

Reasonable accommodation is a right established by the Americans with Disability Act or “ADA.”  The ADA says that an employer cannot discriminate against an employee who is able to perform the essential functions of a position with or without reasonable accommodation.  There are enough concepts stuffed into that one phrase that multi-volume treatises can, and have, been written about the meaning of each of the words.  This post can only give the most basic introduction to the law of this area, but it will give you some idea of how the reasonable accommodation part of this law can help you keep working.

The ADA requires employers to eliminate job functions that are not essential functions of the job or modify the way they are performed, so long as the employee can still perform the essential functions of the position.  When an accommodation will be considered “reasonable” depends crucially on the particular job.  Eliminating a requirement of lifting a boiler might be reasonable if the workplace has several other employees who can do it instead, but it might not be reasonable if the employee works alone.  

Among the types of reasonable accommodations that are helpful to those with cognitive and physical degenerative positions include:

  • A later start time if medications or a condition make it difficult to get up in the morning;
  • A place to take a nap in the afternoon;
  • Communicating with a supervisor by email if oral instructions are difficult to organize;
  • Work at home, full-time or part-time, which is one of the most useful accommodations, but one of the hardest ones to get;
  • Elimination of travel;
  • No required overtime.

Many of these can be difficult to get, especially since many employer still don’t realize how much the ADA requires them to do to accommodate disabilities.  For instance, an employer in Fairfield County recently refused working from home as a reasonable accommodation because “then everyone will want it then.”  Giving something to someone with a disability that everyone else doesn’t get is the essence of a reasonable accommodation under the ADA.  Connecticut 

Requesting reasonable accommodation can also put you in a better position when you apply for long-term disability benefits or in appealing a denial of long-term disability benefits.  I will discuss the issue in my next post, but make sure you consider the effect on your long-term disability insurance claim or appeal while discussing reasonable accommodation with your employer.  

Having a lawyer to negotiate reasonable accommodation can be useful, as a lawyer can remind employers what they are required to do, and advise you about what is possible under federal and Connecticut state law, especially one who can handle the accommodation request in a way to put you in the best position possible in a Connecticut long-term disability claim or Connecticut long-term disability appeal.  This blog will discuss other issues involving the ADA and reasonable accommodation, and their effect on long-term disability insurance claims.  Make sure you, and your lawyer, keep it in mind as a way for you to keep working for as long as you want to before you have to apply for disability benefits.  

Other Posts in the Diagnosis to Disability

Diagnosis to LTD Application: Six Things to Consider

Monday, March 9, 2015

MS Society Presentation on Managing Cognitive Symptoms and Fatigue in the Workplace

The  National MS Society has a great on presentation on dealing with cognitive deficits, that is, difficulties with thinking, remembering and concentrating, in the work place.  The presentation is geared to MS, but would also apply to any degenerative cognitive disease, such as Alzheimer's disease, fronto-temporal lobe disorders, Parkinson's, and side effects of opiods and other medications taken for chronic pain.

Cognitive deficits from degenerative diseases can present difficulties with long term disability benefit claims.  In the early stages, someone may look physically healthy, but have started to suffer cognitive problems.  Your boss may doubt that you are disabled if he sees you working out at the gym after  you requested a reduced work schedule due to cognitive issues resulting from fatigue.  To address the potential doubts, make sure you tell your doctors about the difficulties you are having with cognitive issues.  You consider getting a neuropsychological exam to provide a baseline for neurological function so you can prove that your cognitive difficulties have in fact declined.  

Friday, March 6, 2015

Study Finds Bio-markers to Diagnose Chronic Fatigue Syndrome: Objective Medical Evidence of CFS, ME/CFS

One of the most difficult aspects of showing a disability from Chronic Fatigue Syndrome (CFS or ME/CFS) is convincing the insurance company that the condition was properly diagnosed.  No definitive medical test exists, leading insurers to deny LTD claims based on CFS because of the lack of objective medical evidence.  I discussed some of these issues in an earlier post about the recent proposal that the condition be called Systemic Exertion Intolerance Disease or SEID.

A study recently established that there are differences in the immune system that are associated with CFS.  Patients who had been diagnosed for less than three years had significant activation of cytokines, which influence inflammation, and patients who had been diagnosed for more than three years had dampened cytokines activity.  Healthy subjects had neither condition.  

While the study does not have current clinical significance, it holds out the hope of developing a definitive blood test for CFS.  Here  is a link to a New York Times article on the study. Here is a link to a Reddit "AMA" with Mady Hornig, who worked on the study.  She answers many questions regarding the study and CFS in general.

Diagnosis is important, but as stated repeatedly in this blog, you must focus on the impairment, rather than the diagnosis.  See my prior post on this issue.  But, getting over the diagnosis hurdle would be a big help for an initial application for long-term disability benefits, and appeal of a LTD denial, or a lawsuit to recover LTD benefits.