Disability Law With Guest Andrew Kantor

The Spoonie Struggle

Episode 9:Disability Law With Guest Andrew Kantor

In this episode, we discuss disability law (ERISA law). Disability discrimination is defined as when you need accommodations and your workplace denies you, even though it would allow you to continue to do your job. Disability law is related to when insurance companies don’t pay for disability benefits when the person is due disability. Private disability insurance through work is governed through ERISA law. In this case, even accommodations would not allow you to do your job. You cannot have a disability discrimination and disability case at the same time, as they contradict each other. Federal social security disability is the federal/national disability. You earn SSDI coverage by working a certain number of quarters in your life. If you work enough time, you are entitled to these benefits if you are unable to perform any gainful work for more than a year, earning about $1300 a month. If you can do anything to earn more money than that a month, you will not be awarded SSDI. This makes it very challenging for people who work high paying jobs. The max one can get from SSDI is about $3000 per month. You are entitled for Medicare after 2 years through SSDI. People also have short term or long term disability benefits through their employer or purchased on their own. If it is purchased through their employer, it is governed through ERISA law. ERISA strips an individual’s ability to get additional damages from the insurance company outside of the money you are already owed. This means that disability insurers don’t have any repercussions, and can more easily deny disability claims. They know a lot of individuals won’t fight it, so it makes sense for them to deny claims. ERISA was originally designed to make sure pension managers can’t steal employee’s pensions. Things are starting to get better and there are better ways now to prove your case and your disability. To be able to be successful in your case, you have to find a lawyer who can properly get your case across. It is important to be able to have the medical evidence, as symptoms are not always easy to prove. Get objective evidence and point out what you have is already objective evidence. Know at the beginning if your doctor is supportive of your claim. Make sure all of your doctors are supportive. The longer you have been with your doctor, the better.

Nowadays with COVID, insurance companies are taking the position that even if one is immunocompromised, one cannot claim disability if they are afraid of getting ill or dying at work due to COVID or something else, as they aren’t sick yet and can work. The risk of death is apparently not a good enough reason not to work. Part of the problem with disability law is that the job is the one supplying the disability insurance and they don’t care how bad the insurance is, they just care about the cost of the premiums.

Andrew recommends getting copies of your medical records if you are considering disability. If your medical records are inaccurate, pick and choose your battles. If your claim has been denied, ask for a copy of your file. Make sure you have at least one doctor who is really helpful. Surveillance for someone with an invisible illness is not as big of a deal nowadays, because there is the expectation that there will be good days and bad days. Surveillance is only bad if they catch you doing something you said you couldn’t do.

Be aware of at-will states, because after FMLA is over, you don’t really have job protections. If you have disability through your employer and already filed for a claim before being fired, you continue to have disability even if you are fired. Your claim has to be made the day you are fired or before, or you will not be covered for disability. Assume that everything you tell your employer will be seen by the insurance company. Disability companies pay you a percentage of your salary. You want to get disability payments post-tax, as you will end up with more money. Note, a lot of lawyers offer free consultations. Disclose to your employer whatever is in your best interest. Make sure whatever you tell your employer lines up with what you have told your doctors and the insurance companies. If you carve out a severance with your employer, make sure it doesn’t stop your ability to get disability benefits. As far as accommodations, ask for what you need, even if your symptoms change on a daily basis. Read your policy, see what the definition of disability is, if that definition changes, look at limitations and exclusions section, your maximum benefit amount, and at the offsets.

Links:

Kantor Law

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Workwell Foundation

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Hosted by: Jessica Temple

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