Disabled Teleworkers Dissed by ERISA Disability Carriers and Plans and the Three Ways to Challenge a Telecommuting Denial
The COVID 19 pandemic normalized telecommuting. That was helpful to many of my disabled ERISA disability policyholders because it either allowed them to hide their disability and work around their limitations while keeping their jobs or work at reduced hours within their restrictions and limitations.
What was beneficial at the “own occupation” stage of a disability claim is backfiring at the “any occupation” stage of a disability claim.
What is the Any Occupation Stage of A Disability Claim?
Disability policies or plans will typically pay disability benefits for the first two years if you are unable to engage in the ”material and substantial duties of your own occupation.” After two years, the definition of disability will change to an inability “to perform material and substantial duties of any occupation.” Typically, disability carriers or plans will attempt to have your physician say or will have their physician say that you’re capable of engaging in at least sedentary work.
This is where the games begin!
How Disability Carriers and Plans are Misusing Telecommuting and Using it as an Excuse to Deny Benefits
Disability carriers or plans will argue that you are capable of performing sedentary work and that most telecommuting jobs are sedentary. They’ll argue that you have been doing sedentary work during the any occupation period and, therefore, are capable of continuing to do telework in the any occupation period.
If you haven’t been telecommuting during the any occupation period, the disability carrier or plan may ask your doctor whether you could work from home on your own schedule and ask about any accommodations you might need to work in a telecommuting position.
If your doctor agrees that you can work in a telecommuting position, the disability carrier plan will use that to justify a reason to deny continued benefits. They’ll support that decision by obtaining the opinion of a vocational consultant. There vocational consultant will determine what skills you have that could transfer to other work and whether that job can be done remotely or in person in the national economy. If you’ve received a claims denial or termination based on your alleged ability to do telework, it’s time to take action as you will only have 180 days in which to file an appeal of this wrongful denial.
The Three Ways to Attack a Telecommuting Denial of Your ERISA Disability Benefits
There are three ways to attack a telecommuting claim denial or termination of benefits.
- Obtain a functional capacity evaluation to determine your ability to sit, your need to alternate understanding, and document how pain or pain medication impacts your ability to function in a sedentary position.
- Have your physician endorsed the findings of the functional capacity evaluation add address, from an objective basis, why you can’t do sustained sedentary telecommuting work on a full-time basis.
- Obtain the opinion of your own vocational rehabilitation counselor to attack the carrier for plans vocational evaluators opinion that you have transferable skills, have your VE attack the opinions of the carrier or plan’s VE about the telecommuting jobs they think you can do and have your VE address the impact of your pain and the side effects of medication on your ability to do a telecommuting job.
Give us a call at 727-894-3188 today to discuss your ERISA disability claim! We serve clients nationwide!