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Pain can be caused by any number of conditions including spinal column anomalies, headaches, gastrointestinal issues, traumatic injuries and/or undiagnosed conditions.

When pain is the predominant symptom, issues that must be kept in mind are other-caused symptoms, policy coverage and proof of disability.

Medically, pain may cause other symptoms such as fatigue due to interrupted sleep, lack of focus, depression and/or anxiety. All of these combine to cause disability.

With respect to insurance policy coverage, be aware some policies limit coverage to two years for a disability based on pain. These policies limit coverage for pain as it is the type of symptom that is not provable by tests or imaging studies.

As important, the proof of disability is made more difficult because there are no tests or imaging studies which detect pain or the extent of pain experienced by an individual. Simply submitting medical records from your doctor(s) will not be enough to secure disability benefits.

When pain is a significant symptom, it is very important to have a supportive medical provider to provide evidence of your disability. Repeated notations in the medical records regarding pain and other-caused symptoms are very important. Clinical examination may reveal indications of pain such as spasms, muscle tenderness and/or decrease in range of motion.

There also may be tests to show the fatigue pain causes, or to show a decrease in range of motion, inability to lift and/or inability to sit/walk for a required period of time. Other tests may demonstrate the impact pain has on an individual’s cognitive abilities and mental status.

Since pain is difficult to prove, a claimant should collect as much information as possible such as maintaining a pain/fatigue log by day recording the time, degree and remedy used to treat the pain/fatigue. Information of a similar nature from friends, family and business associates may also be helpful as proof because observation is made over an extended period.

Most large employers provide a benefit plan that may include benefits for life, health, disability, vision and/or dental.  These benefits may be funded by a policy of insurance.  Life insurance is an important benefit as it would pay the proceeds upon the death of the employer or, perhaps if coverage is provided, for the death of a spouse or child.  Included in this life coverage is accidental death and dismemberment coverage (AD & D coverage) that pays only upon injury or death occurring by accident.  Life insurance is a way to provide for the tremendous financial loss that is caused by a death in the family.

Life insurance seems rather simple, that is, you pay the premiums and upon a death the insurance company pays the benefit to the designated beneficiary(ies).  However, there are many traps that may befall a claimant and many exclusions that prevent payment of the benefit.  One trap deals with the fact that such benefits are governed by the Employee Retirement Insurance Security Act (ERISA).[1]  Any claimant on a life insurance policy governed by ERISA is at a disadvantage compared to a claimant on a policy that was purchased on an individual basis.

Another set of traps comes about in the enrollment process for the coverage on the employee and dependent(s).  One trap may be the designation of a beneficiary(ies).  For example, the applicant must determine if a domestic partner or a same-sex spouse can be covered by the policy.  Also, in the instance where the spouse is designated as the beneficiary and there is a divorce, the applicant must remove the spouse as the beneficiary or determine if the ex-spouse can remain as the beneficiary without some action taken by the applicant.

Another trap in the enrollment process may be the failure to provide accurate information or make accurate selections, e.g., optional coverage, which could call the coverage into question upon the death of the employee or dependent.

While it sounds like the proceeds will be paid upon death, it is not that simple.  There are conditions and exclusions regarding coverage that may allow the insurance company to escape paying the proceeds.

In the case of applying for coverage outside the enrollment period, the employee may have to provide evidence of insurability to obtain coverage or an increase in coverage.  If this evidence is not provided to the insurance company, there will be no coverage.

Other conditions require that the employee by a full-time employee, be actively at work, be in a covered class of employees and complete the waiting period before coverage will become effective.

With respect to the AD & D coverage, there are conditions that the injury be caused by an accident and the injury be the sole cause of the loss.  There are many exclusions from coverage such that benefits will not be paid, such as suicide, self-inflicted injuries, sickness, medical or surgical treatment, infections, war, while on active duty with the military, commission of a felony and participation in hazardous sports.

When an employee terminates his/her employment, there are issues with respect to continuing the life insurance coverage.  This is referred to as porting the group coverage or converting the group coverage to an individual policy for the ex-employee.  The time period and the conditions to continue coverage are found in the policy, and must be complied with or the opportunity to do so will be lost.

^[1]The Employee Retirement Income Security Act of 1974, P. L. 93-406 (“ERISA”), codified at 29 U.S.C. § 1001 et seq. and in other titles, is a “comprehensive and reticulated statute.” Pension Benefit Guaranty Corp., 116 U.S. 359, 361 (1980).

Many employees are provided long term disability coverage under a benefit plan[1] which is governed by ERISA.[2]  Most of these plans provide that the employee will be paid 60% (although there are different percentages) of the monthly earnings if the employee satisfies the definition of disability in the plan.  While this 60% is prominently displayed in the schedule of benefits, it is only upon a reading of the plan that one is advised that the 60% amount is offset by other monetary payments[3] received by the employee because of the disability.

The typical offset found in almost every case is the payment under the U.S. Social Security Act.  Most plans require a claimant file for social security benefits or it will estimate the amount that will then be offset.

If an employee makes $48,000 a year or $4,000 monthly, the 60% gross benefit would be $2,400.  When social security payments are made, that amount would be offset from the $2,400 to arrive at the net benefit.  As an example only, if the claimant received $1,200 and the child/children received half of that or $600, the total payment from social security would be $1,800.  This would result in a net benefit of $600.  So in this example the claimant would receive $600 from the plan and $1,800 from social security (until the children reach a certain age).

In the circumstance where the net benefit is very small or is a negative number, the plan typically provides for a minimum net benefit of $100.

One can see that the 60% benefit in the schedule of benefits is misleading, at the very least.  If an employee did not plan on receiving the 60% benefit ($2,400) minus the social security benefit ($1,800) in case of disability, the employee may have over estimated the income they were to receive.  Therefore, the importance of the realization that the plan only pays a net benefit is in planning one’s financial well-being in case of a disability.

^[1]The terms employee welfare benefit plan and welfare plan mean any plan, fund, or program which was . . . established or maintained by an employer or by an employee organization . . . to the extent that such plan, fund, or program was established . . . for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) [holiday benefits, among others] of this title (other than pensions on retirement or death, and insurance to provide such pensions).   29 U.S.C. § 1002(1) (emphasis supplied).

^[2]The Employee Retirement Income Security Act of 1974, P. L. 93-406 (“ERISA”), codified at 29 U.S.C. § 1001 et seq. and in other titles, is a “comprehensive and reticulated statute.” Pension Benefit Guaranty Corp., 116 U.S. 359, 361 (1980).

^[3]Some plans identify these payments as “deductible sources of income” or “other income.”  Typically these other payments are amounts received under worker’s compensation or similar act, employee’s retirement plan, state compulsory benefit law, U.S. Social Security Act and/or that received from a third-party responsible for causing the disability.

Making the decision to apply for and to go on disability is often very difficult when the condition causing the disability is not acute, that is does not require an immediate application for benefits as for example the result of an accident. When you consider this prospect, you need to have several things in order before initiating the claim process with the HR department of the employer.

First, you should make sure that the doctor(s) that are treating the disabling condition agree that you are disabled due to that condition. If possible have the doctor(s) record the symptoms in the medical records, and also recommend that you stop working and you apply for disability.

Second, you need to know the date that you will go on disability. This is not always an easy date to determine. Even if you have a disabling condition, you can struggle through day to day. You are disabled when you finally decide that today is the day that you can no longer do the material duties of your job. This day should be chosen in the context of the policy terms. For example, if there is a preexisting condition issue, one would not want to go on disability until that clause has been satisfied.

Third, you need to have the finances in order as the claim process could last anywhere between six months to more than two years before a decision is finally reached.

Fourth, you need to decide if legal representation is required. For the initial claim process, the less sophisticated you are about such things and the more devastating the disease/symptoms you have, the more you should consider hiring an experienced ERISA attorney. If you are experienced with administrative type procedures and the cause of disability is acute, such as an accident, the more you may think about handling the initial claim process by yourself. For the appeal of any initial denial, you should always consider seeking the help of an experienced ERISA attorney.

You should call a reputable attorney experience in ERISA claims and discuss this further. This attorney should be able to tell you about the company involved, the type of disability condition you have together with the anticipated difficulty in proving the disability, the likelihood that you will successfully navigate the initial claim process and the attorney fees that would be charged in that situation. From this discussion you should a have a better feel for whether you want to try to file the initial claim.