Concerns about Work Accommodation in US

[SnappingTurtle]

Not sure how to word my questions, and I know I have more than what I wrote here...so please bear with me.
Background:
I am just now on Long Term Disability (LTD) through my employer paid plan that pays 60% of my full time salary. Two things are happening; I could use advice:
1) The LTD plan requires me to apply for Social Security Disability Income (SSDI)
2) and, my manager is encouraging me to request soon for Work Accommodation that would allow me to work 10 hours/week and start maybe in June 2021; that is, if I am well and my doctor allows it. My LTD plan has a provision that I must attempt work accommodation unless my doctor discourages it.

Issues/Questions:
1) If I did return to work in June 2021 under Work Accommodation with the reduced hours,
a) but find within 90 days that I cannot handle it and return to LTD, won't my LTD benefit be reduced because I am now only a part timer: 60% of 1/4 of my full-time salary)?
b) won't that jeopardize my SSDI application because it seems I am not disabled and am able to work? The amount I will earn (even at 1/4 full-time salary) exceeds Social Security limit for part time work.

c) won't I be foregoing LTD benefits altogether, in exchange for even lesser pay?

d) I guess I should only consider returning if I am really well-improved, bit what is the likelihood of this? On good days, I have activity level 3—Leave house several times a week, two hours work/activity at home a day. On bad days, I am 2—Leave house once a week, concentrate one hour a day.

Hope someone can help!

 

[SnappingTurtle]

I pondered some more plus read some previous posts and have noted some relevant points:

A. The real question is: am I really ready to work? Can I engage in work reliably and repeatedly without detriment to my health? This is to be discussed with my doctor.

B. I am just a few days out of a 1.5 month PEM relapse. What am I doing thinking about working? I believe I crashed because I added an average of 3 additional activities (~30 mins each) to my weekly schedule. If I can't tolerate 1.5 additional hours of exertion, then I cannot return go work. At leasr not right now.

C. I checked my LTD plan documentation, any partial pay from returning to work or attempting a phased or flexible work accommodation will be offset, such that I will still end up with an amount equal to the entire disability benefit (60% of my pre-illness, full-time salary).

D. If my "return to work" pay exceeds Social Security's "substantial gainful activity" (SGA) limits, then my SSDI application will likely be denied. Big consideration, since it is important for me to qualify for Medicare by virtue of the SSDI application.

E. My employer will likely reject the work accommodation request if I offer to work too few hours each week. There is some language in my LTD plan that relates to eligibility requirements of 20 work hours per week. Not sure if returning to work under Work or ADA accommodation with reduced work hours will immediately cause my coverage to end.

F. Returning to full time work as opposed to part time work makes better financial sense; I would be making less as a part timer than if I stayed out of work covered under my LTD plan.

 

[SnappingTurtle]

Okay, I spoke separately with my doctor and with Linda Nee, who provides advocate services. I hope this thread will help those in the same situation to go through the thought process with me...

A. The real question is: am I really ready to work? Can I engage in work reliably and repeatedly without detriment to my health? This is to be discussed with my doctor.

B. I am just a few days out of a 1.5 month PEM relapse. What am I doing thinking about working? I believe I crashed because I added an average of 3 additional activities (~30 mins each) to my weekly schedule. If I can't tolerate 1.5 additional hours of exertion, then I cannot return go work. At leasr not right now.

I realized I was just exhilarated from coming out of my PEM crash and not thinking clearly. There is still an element of denial where my mind thinks I can still ask my body to work in the same manner as pre-illness. My doctor reminded me of the unpredictable nature of ME/CFS and that my 2 day CPET results which showed I cannot barely sit up at a desk and therefore cannot do sedentary work. I agreed with my doctor that it doesn't make sense to consider work at this time. It would be deleterious to my health!

E. My employer will likely reject the work accommodation request if I offer to work too few hours each week. There is some language in my LTD plan that relates to eligibility requirements of 20 work hours per week. Not sure if returning to work under Work or ADA accommodation with reduced work hours will immediately cause my coverage to end.

Linda confirmed the above and warned of the risk: that if you return to work for less than the minimum work hours required, then you lose your LTD coverage! I cannot conceive of working 20 hours a week. So, that too, is a non-starter.

Linda also mentioned we often talk ourselves back to work prematurely. Consider this scenario: I return to work but at 20 hours per week. If I find I cannot sustain this and exceed a "recurrence" provision time limit (say 90 days), then I will have to start a new claim and my benefit will be reduced to half because of the new normal of 20 hours per week. Recurrence provisions allow you to continue or resume disability benefits under the same claim but this assumes a return to the same number of hours (full-time), in my case.

Also, LTD will offset their payments based on other income, such as SSDI and part time earnings. If you have stacked enough other income, that may result in the LTD company only shelling out the minimum benefit amount, e.g. $100. So, what is the point of putting your health potentially in danger, for such as small amount?

Based on my conversations, I will just proceed with my SSDI application. I will not consider a return to work, ehqich would be premature (and likely not possible) and puts my health and optimized benefits at risk.

 

[minimus]

Seems like you arrived at the right conclusion, but here are some other thoughts:

• Dealing with LTD insurers can involve a fair amount of work and stress in itself. So I would focus your energy on maintaining your LTD benefits as long as you are too sick to work, e.g. by gathering medical evidence that supports your disability claim. You already did the 2-day CPET, which is quite helpful. You also might want to get a neuropsych test done by a psychologist familiar with ME/CFS if you have cognitive issues. Some experts recommend keeping a daily journal of your symptoms and activity level.
• It's important to focus on your SSDI application to improve your chances of getting approved when you initially apply. The standard to receive SSDI is inability to do any job (more or less), which is a tough standard, so it can be hard to get approved, especially with a relatively poorly understood illness like ME. If your initial SSDI app is denied, you then have to get in line to have an administrative hearing to try to get the denial reversed, and that can involve a long wait time. Also, if your initial SSDI application is denied, the LTD insurer can use that denial as a piece of evidence to support their eventual termination of your private LTD benefits.
• If you get your current health insurance through your employer, that's another reason to get on SSDI as soon as possible. The reason is that winning SSDI provides you with access to Medicare two years after the SSA determines that you became disabled. Medicare is less expensive and more widely accepted than plans offered through the ACA, which is where you would end up buying insurance if/when you lose your employer-provided health insurance. (On the other hand, if you have a spouse with access to health insurance, don't worry about this issue.)
• If you haven't already done so, you might want a disability lawyer familiar with ME/CFS to read your LTD policy as part of a free or low-cost consult. Does the policy have an "own occupation" or "any occupation" definition of disability? Does it switch to the "any occupation" definition after two years? Does it have any other bells and whistles to be aware of? A decent LTD lawyer can read through the policy and tell you how likely an LTD insurance denial is at some point -- this seems to be a function of the policy language, the strength of the medical evidence supporting your disability, the LTD insurance company, your age (if you are older and closer to retirement age, a denial is less likely), and how much the insurance company is paying you each month.
• Another option is to hire Linda Nee as a consultant. She is reasonably affordable and takes on the role as the go-between between the LTD insurer and you. However, I found her to be a bit too gloom-and-doom and fostered a bit too much paranoia. At least when I spoke to her a few years ago, she said LTD insurers eventually deny LTD benefits to everyone with a diagnosis of ME/CFS and that I should ask my doctors to find another diagnosis as the basis for my application. That seemed impossible to me, but maybe I spoke to her on a bad day.

 

[SnappingTurtle]

@minimus, thank you for the other considerations! It saddens me that these insurers cause so much stress to people who are already struggling with chronic illness.

You also might want to get a neuropsych test done by a psychologist familiar with ME/CFS if you have cognitive issues.

Thank you, I will keep this in mind! Any recommendations in Southeast US?

if your initial SSDI application is denied, the LTD insurer can use that denial as a piece of evidence to support their eventual termination of your private LTD benefits.

Even though I do not see LTD terms that require a successful SSDI application, I believe it is possible that the insurer will try to play dirty. It sounds like I have to constantly be on guard!

Does the policy have an "own occupation" or "any occupation" definition of disability? Does it switch to the "any occupation" definition after two years? Does it have any other bells and whistles to be aware of?

Yes, it has a switch to ANY occupation after two years. So, have to prepare for that eventuality. The LTD plan also has a 2 year cap for mental illness. Although my medical records only mention mild cognitive impairment due to ME/CFS, I hope I won't have to argue with them about this.

 

[*GG*]

I worked ill for 10 years, it sucked! Then my Lawyer never filed a claim against my LTD, he said he didn't know I had one? Really? That is cheap insurance! So he really screwed me over, but I guess I don't have those shit loopholes to jump threw now.

I had FMLA leave for years, and started off at 2 days on, 1 day off, 2 days on. But not getting paid for 1 day a week really hurt my income as well. I know we cannot have a system that is super easy, because some will take advantage of it.

I had the 2 Day CPET test done in 2010, and a Neuropsych evaluation after losing my job. They were continually harassing me, sleeping on the job and other bullshit! Glad I don't have to work anymore, but the work nightmares persist after 6 years of not working now.

GG

 

[gbells]

You really need to ask these questions from a good disability lawyer for the latest information. I was told by mine in 2008 that any work hurts you but I've also seen articles saying you can work up to the poverty limit. If you exceed the limit they will reject your SSD case automatically. There are also other disqualifiers like using a physician's assistant or nurse practitioner, not being compliant with medication and not seeing a doctor. They will try anything they can to deny ME claims and only 15,000 people are on disability for ME out of around 2.5 million ME patients in the USA. My SSD award was for pain (undifferentiated somatoform disorder). My ME alone was not sufficient to win.

 

[minimus]

@SnappingTurtle

Regarding neuropsych testing, I only know of two psychologists who came highly recommended to me in my neck of the woods, New York: Gudrun Lange and Leo Shea. Gudrun Lange was pretty responsive when I called her a few years ago, so she might be able to provide you with a recommendation of a good psychologist in the Southeast.

Since your LTD policy switches to an "any occupation" definition after 24 months, that might be the point the insurance company decides to hassle you. But you should be OK if you have a good doctor working on your behalf, evidence from the 2-day CPET and, down the road if needed, the results of a neuropsych evaluation.

Another test that would help prove disability if absolutely needed is the iCPET that David Systrom does at Mass General. He has a very long waiting list for new patients, but his iCPET provides objective physiological evidence that your disability is physical, not psychological or psychosomatic -- the test shows cardiac preload failure and, in most cases, poor oxygen extraction indicative of mitochondrial dysfunction/disease in ME patients.

As Linda Nee says, the best approach is to avoid a denial of LTD benefits in the first place by avoiding common pitfalls and mistakes, but if the insurer does terminate your benefits, you need to hire a lawyer to have any chance of winning your appeal/court case. (Group LTD policies are governed by ERISA, as you probably know, a law that is stacked against disability claimants in favor of LTD insurers.)

Finally, if you haven't already found it, the website "The Sleepy Girl Guide" (Link) has some good practical advice on how to improve the chances that your initial application for SSDI will be approved.

 

[SnappingTurtle]

Update and new concern!

I just got a termination of employment letter, after I recently began receiving Long Term Disability (LTD) benefits.

It states: "Because you are absent without job protection, your employment... will terminate in 21 days..., unless you request additional unpaid leave as a job accommodation as discussed below."

My question is, knowing that due to my disability I am unable to return to work, how should I respond?

I have a clause in my LTD plan that says benefit payment will cease on "the date You refuse to cooperate with or try:
(a) modifications made to the work site or job
process to accommodate Your identified
medical limitations to enable You to perform
the Essential Duties of Your Occupation;
(b) adaptive equipment or devices designed to
accommodate Your identified medical limi-
tations to enable You to perform the Essen-
tial Duties of Your Occupation;
(c) modifications made to the work site or job
process to accommodate Your identified
medical limitations to enable You to perform
the Essential Duties of Any Occupation, if
You were receiving benefits for being Disa-
bled from Any Occupation; or
(d) adaptive equipment or devices designed to
accommodate Your identified medical limi-
tations to enable You to perform the Essen-
tial Duties of Any Occupation, if You were
receiving benefits for being Disabled from
Any Occupation,

provided a qualified Health Care Provider agrees
that such modifications or adaptive equipment
accommodate Your medical limitations;"

My doctor and I are certain that due to PEM and my low energy threshold, I will not be able to perform the essential duties of my job. Basically, I cannot be relied upon to be present on a consistent basis and cannot repeatedly perform my work without detriment to my health. We cannot predict if I will get better or worse within the next next 12 months!

His progress note even states:
"...she was
functioning very low on Cardio-Pulmonary Exercise Testing! Based on this data it is medically certain that
she will not improve significantly in the next twelve months."

Should I be requesting a letter from my doctor, too?

 

[Judee]

There is still an element of denial where my mind thinks I can still ask my body to work in the same manner as pre-illness.

Even after 40 years I still have to deal with my mind planning big things that my body will never, ever be able to accomplish...at least not without a cure or some other kind of miracle.

Hope you get some answers. There was a disability lawyer that worked with ME/CFS disability cases but I cannot find his name right now.* I also mentioned one recently in another thread that I saw on YT named Nancy Cavey. You could watch those videos or maybe even try to contact her.

*He's somewhere in AZ. Here is my search engine page. I cannot find him on it but there are some others listed. This one does national disability claims. Of course, I would look for BBB and other websites for reviews on any of these before trying to hire them but you could see if they give free consulations to get some of your questions answered.

 

[SnappingTurtle]

Hope you get some answers. There was a disability lawyer that worked with ME/CFS disability cases but I cannot find his name right now.*

@Judee , yes, I think I will ask Andrew Kantor or Linda Nee.

 

[SnappingTurtle]

I got excellent advice from Andrew Kantor: I will be requesting additional unpaid leave which is the only job accommodation I can request per my doctor/because of my ME/CFS. This will ensure compliance with my LTD plan, even if my employer ultimately rejects the request.

 

[SnappingTurtle]

I ultimately received a rejection of my work accommodation request for additional unpaid leave of 1 year. No surprise there. I will be terminated in a few months.

 

[Rufous McKinney]

No surprise there. I will be terminated in a few months.

I'm sorry this crappy stuff is going on. So ridiculously complex, and beyond unrealistic for sick individuals to have to deal with this level of Malarky.

I wish you the best in navigating all this.

 

[Judee]

I ultimately received a rejection of my work accommodation request for additional unpaid leave of 1 year. No surprise there. I will be terminated in a few months

I'm sorry, @SnappingTurtle. Don't know what to say.

 

[gbells]

b) won't that jeopardize my SSDI application because it seems I am not disabled and am able to work? The amount I will earn (even at 1/4 full-time salary) exceeds Social Security limit for part time work.

Call a well ranked disability law firm and ask them (I think there is a lawyer on youtube that you might be able to ask). It takes a while for the appeals to go though so maybe it won't matter. If I were you I would bank as much money as possible and prepare for a transition to a job-less existence. In my case I used all available unemployment extensions (which were banked) and went into public housing on a flat rent of $50 per month due to no income. I applied for a full student loan discharge and SSD. The SSD appeals took four years and were not successful until I obtained a neuropsychology exam to document my cognitive impairments. I think it was three years before I went in front of the ALJ and one year to do the ALJ appeal which was then granted by the original judge with the new evidence. ME is a hard fight so given your impairments you might want to just retain a firm early to help you and get the neuropyschological testing if you have cognitive impairments. With that testing you might have a faster process. Most adult ME worsens (75%) so if it becomes worse later you can get the testing.

 

[Judee]

went into public housing on a flat rent of $50 per month due to no income.

Wondered about this. Did they take into consideration what you had managed to put away in savings?

 

[gbells]

Wondered about this. Did they take into consideration what you had managed to put away in savings?

I reported it but it doesn't matter for the rent because it is based on income + interest. My money was just about $27,000 in savings accounts so it didn't matter.

 

[Judee]

I reported it but it doesn't matter for the rent because it is based on income + interest. My money was just about $27,000 in savings accounts so it didn't matter.

That's good to know in case I am not able to move in with my sister ultimately. Did they seem to make any fuss about that money though? Even just comments?

 

[gbells]

That's good to know in case I am not able to move in with my sister ultimately. Did they seem to make any fuss about that money though? Even just comments?

The just is to just calculate the interest, nothing more. Also, I think real estate and retirement accounts are exempt.