There are two basic types of insurance coverage available for a disability that impairs ones’ ability to continue working, total disability or residual disability. “Residual disability” pertains to those participants who cannot perform all of their pre – disability material and substantial duties on a full time basis, but can perform them part -time, or can perform some of their pre-disability duties.
Residual disability benefit payments are based on what the individual is earning from engaging in their occupation. When our disabled clients return to work, and make a claim for residual disability, their earnings offset what the disability insurer continues to pay them. In cases where individuals are on a set monthly salary, the monthly benefits can be easily calculated. All policies require that the insured sustain a loss of at least 20% of their pre-disability earnings to qualify for the benefits. For a person earning periodic “bonuses” usually the insurer will give the participant the choice of either averaging the “bonus” over the course of the year, so each month the income is increased, or charge the bonus offset all at once, which may cause that monthly loss of income to be below the 20% minimum. For a professional, such as physicians, their monthly income relates directly to the payments by third parties. This may cause a significant problem in continuing residual disability benefits.
A recent case points out an example of how earnings during a residual disability claim can end a claim. In Safdi Md. v. Covered Employer’s Long Term Disability Plan Under the Union Central Employee Security Benefit Trust 2015 WL 7434695 (6th Cir. 2015) his Union Central policy provided that “benefits are terminated if a participant is either no longer disabled or exceeds the earnings threshold of 20%.” Dr. Safdi reduced his work hours after treating for prostate cancer. He lost income due to fewer hours billed. Once in a while, due a spike in collecting payments, his income did exceed the 80% threshold. Once an audit occurred Union Central stopped benefits and demanded a repayment of over $500,000. It was accurate that Safdi did earn over 80% of his pre-disability earnings on certain months, due to the payment of collectables. However, on average, he still sustained a loss which would have justified the continued payment of the claim under the policy if it did not have this “all or nothing clause.” Safdi claimed that participants will be “victimized” by a one-time spike in current monthly earnings which is an acute risk under a plan designed for professionals because “payments from professional services (through insurance reimbursements and government benefits) are normally significantly in arrears after provision of the … services.” The court rejected his plea that the variability of professional earnings inures to the benefit of the insurer more than often than not and applied the policy terms as written.