As disability attorneys, we often meet with individuals who have continued working after developing a disabling condition for various reasons, both financial and professional. Insurance companies will often refuse to find a claimant disabled until he or she stops working entirely. However, some individuals may have a legitimate disability claim that begins prior to leaving work, which can potentially increase the amount of benefits payable.
The Courts have recognized that an individual who works while disabled is not necessarily precluded from collecting total disability benefits. See Rabbat v. Standard Life Ins. Co., 2012 U.S. Dist. LEXIS 142336 (D. Ore. Oct. 1, 2012). The court ruled that Rabbat was disabled by these symptoms despite continuing to work for a period of time, based on his doctors’ reports of the severity of his condition; his frequent need to miss work when having a flare-up; and his supervisor documenting Rabbat’s observable severe symptoms and increasing difficulty performing his job during his final year at work. The court stated, “A desperate person might force himself to work despite an illness that everyone agreed was totally disabling. . . . Yet even a desperate person might not be able to maintain the necessary level of effort indefinitely. The claimant may have forced himself to continue in his job for years despite severe pain and fatigue and finally have found it too much and given it up even though his condition had not worsened. A disabled person should not be punished for heroic efforts to work by being held to have forfeited his entitlement to disability benefits should he stop working.” Similarly, in Bray v. Sun Life & Health Ins. Co., 838 F. Supp. 2d. 1183 (D. Co1. 2012), the court found that Bray was disabled prior to leaving work due to a then undiagnosed brain tumor, as it was clear from his performance that his symptoms prior to diagnosis severely impeded his work performance such that it could not be said he was truly capable of performing his job.
Caselaw aside, some disability income policies contain a partial disability provision for a continued percentage of benefits while the insured is disabled but working in a limited capacity. While this typically applies to residual rather than total disability, it is an alternative avenue to explore for individuals who are ill but continue to work in a certain capacity due to their particular circumstances.
While the notion of working while disabled has been useful in cases involving individual disability income policies, it is far less useful to insureds covered by group policies since poor performance or excessive absences due to a disabling condition can lead to termination and loss of coverage.
If you have been denied disability benefits based on your professional persistence in the face of illness or are concerned for your future and struggling to decide on a disability plan, contact us at Bonny G. Rafel for an expert consultation. We may be able to help.
– By Sara E. Kaplan, Esq.