In some cases, an injured employee might do some of what they did before their injury or illness. They might work in some capacity, but not to the extent that they did before. These are difficult cases because an insurance company will argue that the policyholder has more capacity to work than they really do.
There is a category called partial disability that allows a claimant to receive a percentage of their benefits. This is a gray area that gives insurance companies an opening to take advantage of policyholders.
Whether you have partial disability coverage depends on your policy. Some insurance companies offer this as part of long-term disability coverage. While this seemingly gives employees another option to receive the benefits that they need, it also gives the insurance company even more wiggle room to deny total disability claims.
The Types of Injuries That Can Cause Partial Disability
Long-term insurance coverage can cover total or partial disability. The difference between the two depends on the extent of your injury and what you can do in the wake of your condition. Partial disability means that you can do some work, even if you cannot do the full duties of your job beforehand.
Here are some conditions that might lead to a partial disability claim:
- Back injuries
- Carpal tunnel syndrome
- Hearing loss
- Vision damage
What may be a partial disability for one person can be a total disability for someone else. For example, if you worked in a physical job, an amputation can end your ability to do physical work. However, if you are in an office job, you might continue working almost to the full extent that you were before the injury once your health is stable enough to return to work.
Closely Review the Language of Your Policy
Much of what you qualify for depends on the language of your policy. The insurance company will define terms ahead of time to specify what would allow you to receive full or partial benefits.
In most cases, partial disability benefits that are a feature of ERISA plans are for a limited duration. Many of these policies will provide partial benefits for a set time, but not permanently. However, some policies allow for a permanent partial disability designation.
Be Careful How Much You Earn When You Are Receiving Partial Disability
A partial disability provision will also limit the income you can earn while you receive benefits. The customary limit is 80 percent of this amount. You must take great care and listen to your disability lawyer. You must continually provide the insurance company with information about your earnings through pay stubs and tax returns. The insurance company wants you to work, but they do not want you to work too much.
In addition, the insurance company may continue to ask for information that demonstrates that you are partially disabled. They may request details that show that you have continued limitations that keep you from performing your full job duties.
The Relevant Tests for Partial Disability
Here, the relevant question is whether the insured can work and how much work they can do.
Two relevant terms are part of this determination:
- Own occupation – this is when a claimant cannot complete the duties of their occupation. However, the insured might do some parts of their old job, depending on the extent of their injuries and their diagnosis.
- Any occupation – this is when a claimant cannot perform the duties of any occupation for which they received education or training.
One definition of partially disabled is that:
(1) if they can perform at least one duty of their regular occupation on a part-time basis, or (2) if they cannot perform regular duties but can perform duties of another occupation for which they have the proper training, education, or experience.
The Features of Partial Disability Coverage
Partial disability benefits will protect someone earning part of what they made before but who cannot earn what they did before their disability. If you can still work and earn some money, a partial disability determination can allow you to recoup income so that you still make what you did before the injury or illness.
Another important feature of partial disability coverage is that it may cover non-consecutive weeks. For example, if you have 500 weeks of coverage, you can use the benefits at different times, depending on when you can or cannot work.
How the Insurance Company Determines Partial Disability
Here is what the insurance company may consider in determining partial or total disability:
- Job records and vocational information that shows what the insured was doing before the injury
- Information about the training and skills of the policy holder
- A statement from the employer
- Statements from the insured and other witnesses
- Medical evidence that establishes the extent of the disability and the future prognosis for the policyholder
How the Insurance Company Will Dispute Your Claim
Presumably, the most important part of this determination will be the opinion of your treating doctor. However, insurance companies are notorious for relying on the opinions of their own in-house doctors, who may have a different motivation. They may also insist on “objective medical evidence,” even when the policy does not require such evidence.
They will ask for tests such as MRIs, X-rays, CT scans, and blood panels, so they can perform their own evaluation of your medical condition. Usually, the insurance company will consider the doctor’s opinion in tandem with these tests. It has the right to send you to another doctor for an opinion.
One area where there are frequent disputes between policyholders and the insurance company is why the claimant qualifies for benefits. The insurance company may try to argue that the person can perform some work. The adjuster may overestimate the claimant’s ability, often because they use an overly rosy assumption of the claimant’s skills or physical ability. This will get them out of paying full benefits and save the insurance company some money.
Another area of disagreement is that the insurance company may argue that the person has training, education, and experience to perform the duties of another occupation. The claimant may not feel the same way, either because they know that they cannot get a job in that field, or they have a sound understanding of their skills. The claimant will argue that they are totally disabled, while the insurance company may pay them on a partial disability basis—or just cut their benefits off.
The Insurance Company Will Ask About Job Opportunities
In addition, an insurance company may also reduce or cut benefits if they find out that a claimant has turned down work they qualified for based on their education and experience. In that way, partial disability benefits are similar to unemployment benefits in that the insurance company wants to see you trying to work.
For the insurer, they get to cut what they pay you because you cannot make more than you were earning before the injury through a combination of your earnings and disability benefits.
Even when a claimant receives partial disability benefits, they have no assurance of receiving them permanently. Insurance companies always look for ways to throw people off benefits and challenge their eligibility. A claimant needs to take care that they do not exceed income limitations as they begin to work again in some capacity. Even exceeding the earnings cap once can cause a claimant to lose benefits permanently. Insurance companies will strictly interpret the terms of the policy when they can to save themselves some money.
When you are receiving partial disability benefits, you must make sure to follow policy terms to the letter. Otherwise, the insurance company can cut off benefits, and their determination may stand up in court. You may need legal advice when you are receiving benefits to make sure that you keep getting them.
If the insurance company has cut off benefits, you can appeal the determination and fight to keep receiving them. They do not have the final say over the benefits that you receive. An insurance policy is a contract, and the insurance company has obligations.
The Insurance Company Will Fight No Matter How Much It Pays
Just because the insurer is paying out less money in a partial disability claim does not mean that they will be any more reasonable than they would for a permanent disability claim. The rule of thumb is that they try to save money wherever they can by making life more difficult for you. These insurance companies try to sell their disability policies by telling you that you can protect your paycheck, but they will not hesitate to deny your claim whenever they can.
If your partial disability benefits are through an employer-provided plan, you will have appeal rights if you disagree with the insurance company’s determination. Just because you are not dealing with a full payment for total disability does not lessen your appeal rights. ERISA applies to any insurance determination made so long as it involves an employer plan. You still have the right to challenge an insurance company’s decision when it involves a disability plan that you purchased privately.
Partial Disability Claims Are Still Subject to Rigorous Review
Just because your claim is for partial disability, do not assume that the insurance company will subject it to lesser review. In some ways, they may be even more stringent about these cases because they present the insurance company with an easier way to save money by overstating the amount that you can work. These types of claims have plenty of room for interpretation and gray areas.
Appeals will be no easier with a partial disability than they would be with a total disability case. This is why you need an experienced ERISA lawyer to advance your case when you must deal with the insurance company and the appeals process.
Appealing a Partial Disability Benefits Decision
The appeals process allows you to receive another review of the decision. First, you would appeal directly to the insurance company.
They would assign a second reviewer to look at your case.
The reviewer would consider:
- An opinion from your treating doctor about the nature and extent of your disability
- Testimony from a vocational expert about the duties of your job
- Further testimony from a vocational expert about what job duties you are qualified for and what you can do, given the extent of your disability
The opinion of the vocational expert is particularly important given the distinction between partial and total disability. You can count on a dispute about what you can do in light of your training and qualifications. The insurance company will always argue that you can do more because that is what saves them money. They will claim that you can do some work, even if it means being on your feet or present in the workplace in some capacity. Your lawyer can help impress upon them the reality of your situation.
If the insurance company does not grant your appeal, you can file a lawsuit in federal court. If you privately purchased a disability plan, your disability attorney can file suit in state court when the insurance company does not honor the policy’s terms.
When you deal with an insurance company for a disability claim, you should expect that anything can happen, and the results may not be good. Hiring an experienced partial disability attorney, either at the outset of the process, or for an appeal, can give you a better chance of receiving the benefits that you need.
The insurance company knows exactly what they are doing, and this is not a process that you can or should undertake alone. The stakes are too high to leave anything to chance.
Should you have any further questions, don’t hesitate to reach out to a group long-term disability insurance lawyer to get answers.
Following graduation from Loyola Law School in New Orleans in 1990, Price McNamara served as a Federal Judicial Law Clerk to the Honorable John M Shaw, Chief Judge, United States District Court Western District of Louisiana.
Mr. McNamara founded J. Price McNamara ERISA Insurance Claim Attorney, and began putting his past experience to work for the injured and disabled clients he now represents against the insurance companies in personal injury and long term disability and other insurance disputes in both federal and state courts