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Blog | ERISA and Disability Rights and Benefits | Alabama | The Martin Law Firm, LLC

What’s in Your Disability Plan?

Posted by David P. Martin | Apr 17, 2017 | 0 Comments

Remember the Capital One® commercial, “What's in Your Wallet?” It is also important to know what is in your disability plan, since it will affect your wallet.

Many of us never think we will be unable to work. However, every day we are only one accident away from that. If you have a plan, you need to know what is in it. If you don't have one, you are risking more than you may realize.

The Middle District of Florida recently was looking at a plan – a FedEx plan. We have previously noted that this plan is one which will rarely ever pay. This proves true again. This plan gives Aetna discretion to make all findings of fact and to make all interpretations of the policy. A court can only disturb that if Aetna's decision is arbitrary and capricious. An employee, a senior business systems adviser, found out the hard way how illusory this plan really was. One of the onerous terms was proving disability based on an inability to engage in any employment for a minimum of 25 hours per week.

Generally, people think a disability policy covers the income earned during their normal work week and not at a greatly reduced schedule. And certainly, they think they are covering their wage. That is the point of a disability policy – to provide income replacement. In this instance, however, an infralimbic thromboembolism, COPD, emphysema, blood clots, depression, hypertension, hyperlipidemia, obstructive sleep apnea, obesity, and irritable bowel syndrome were not enough to prevent Aetna from finding Ms. Street capable of working 25 hours a week.

Aetna hired Dr. Cosmo to examine the plaintiff, which is often a policy right for the insurance company. The doctor often is someone the insurer regularly uses for this. The doctor found on this one-time exam, that Ms. Street could work a sedentary occupation for at least 25 hours a week. This was due in part to the lack of “significant objective findings.” That is another plan term that can be very difficult to overcome for a claimant, since pain and fatigue are very often subjective. Providing “objective proof” of pain or fatigue as defined by that policy may not be possible.

To preserve her function, the plaintiff exercised by swimming. The court said Aetna was correct to take that activity into account, along with other activities she engaged in to preserve her remaining function. If she could do laundry, prepare meals, and take afternoon swims she could work 25 hours per week. The Court ruled for Aetna.

This underscores that everyone needs to take a few minutes to read their policy. Too busy? For me the perfect time is in a waiting room or during an oil change. If your long-term disability policy is worthless, find a replacement that covers your needs. Don't find out when it is too late that you are banking on an illusion.

About the Author

David P. Martin

Senior & Managing Attorney


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