Re: Disability -- need advice

[Guest guest]

Forgive me for chiming in on the conversation a little late, but I was out of town when the original post was posted, and have not had a chance to sit down and compose a thoughtful response to the question asked and the advice given until now. Nick and have given you some good advice. It is pretty difficult (if not impossible) to make a successful disability claim without the support of your primary care physician. It is important to treat the psychological effects of HIV disease as well as the physical conditions, and psychological issues can play a role in the disability process for people with HIV disease. But it is also important to understand that there are many "disability" programs that may apply to people with HIV, and each may have it's own definition of disability. As an attorney and a former disability benefits

advocate for more than 10 years, I can tell you is that it is essential to know the definition of disability that is applicable to the benefit program that you are applying for. Sometimes doctors assume that there is only one applicable standard of disability (Social Security's) and give an opinion on your eligibility for "disability". Ideally, everyone applying for disability should have the assistance of a knowledgeable benefits advocate who will take the time to read the applicable definitions of disability for each program that you may be eligible to apply for and to elicit from you a detailed understanding of the physical and psychological issues that may prevent you from working. I'm not trying to say whether you should or should not apply for disability before your employer closes its doors. That is a determination for you and your doctor to make, but I want to make sure that you (and your doctor) understand the applicable definition of

disability.You mention in your email that you are concerned about your employer's disability policy not being available to you if the company closes its doors. It is clear that you are talking about an employer group long term disability policy ("LTD"), not Social Security

disability or state disability insurance. Your LTD policy will probably require you to apply for Social Security disability benefits and any state disability benefits that may be available in your state, and will subtract the amount of any benefits received, but if your application for these benefits is rejected, your LTD will pay the full amount of benefits stated in the policy, usually a percentage of your pre-disability income. So in your case, it is the LTD disability definition that matters most. Each LTD policy has it's own definition of disability, and there are some variations, but most employer group LTD plans consider you to be disabled if you are unable to perform all of the material duties of your own occupation. If this is your disability definition, then you should ask yourself and your doctor if you meet this definition of disability. Since a material duty of most occupations is the ability to consistently work an eight hour day,

five days a week (or more in the case of some occupations), you may be considered disabled if you have frequent absences from work caused by your condition. What matters most in disability claims is functional ability, not CD4 count. If diarrhea, nausea, fatigue, pain, or other symptoms of HIV or side effects of your medications prevent you from doing all of your duties on a full time basis, then you have a legitimate claim for benefits. Since reports of such functional limitations are usually the basis for disability determinations related to HIV these days, it is important that you (and anyone else who thinks they may need to apply for disability some time in the near future) report any such symptoms to your doctor, and make sure your doctor records them in your medical record. It is possible to file a claim for disability after a lay off or other termination based on medical records that establish that the claimant was disabled before the

termination of employment, which normally terminates most employer-based group LTD benefits. Claims can even be made years after a termination, as long as there are medical records establishing that the claimant was disabled before termination of employment. Still, it is easier to file a claim if you stop work for medical reasons than it is if you file after you are terminated, as a post-termination claim has the appearance of being thought up after the fact, and raises the question of why you continued to work after you were disabled.Most LTD plans have a two year limitation on benefits for claims based on psychological disability. If you have both physical and psychological factors, try to get your doctor to say that the physical factors are what prevent you from working, and that any psychological factors are secondary to your HIV disease, so the two year limitation won't be applicable. Most LTD plans also change the definition of disability

after you have been receiving benefits for two years to require that you be disabled from performing the material duties of any occupation (not your own.) In cases of disability caused by HIV, this usually does not result in disqualifications at the two year mark, unless your own occupation was a very physically demanding one and you might be able to perform a more sedentary occupation. Case law requires the disability insurers to take into account your station in life before disability, so they can't declare someone who had been a professional no longer disabled under the any occupation definition if they are able to perform data entry. In today's economy, even two years of benefits would be very helpful, so a claim limited to two years based on psychological disability or due to failure to meet the somewhat more stringent disabilty definition after two years would probably be better than no disability benefits.As I mentioned earlier, you will

be required to apply for Social Security disability insurance benefits, but your LTD benefits will not be affected if your Social Security claim is denied. In fact, your LTD will probably have to pay more if your SSDI claim is denied. SSDI has a more stringent disability definition, "unable to perform substantial gainful activity", which is further defined in cases of HIV by the listings that have been discussed in recent posts. For someone like you, recently diagnosed with CD4 always above 350 and presumably no opportunistic infections, this may be a hard standard to meet. A successful SSDI claim allows an extension of COBRA benefits from 18 to 29 months, and it qualifies the beneficiary for Medicare 24 months after the commencement of benefits. With the advent of national health care reform, these benefits may not be as critical to you as they were to previous disability applicants. The critical question is whether you can continue your health

insurance until 2014, when all of the provisions of health care reform are implemented.I hope this is helpful to you in deciding whether to apply for disability before your employer shuts down. I'd be happy to discuss the issues with you further.

Re: Disability---need advice

Posted by: "Nick "

thenick@...

thenick@...

Thu Sep 16, 2010 6:38 am (PDT)

Hi!

I understand your economic rationale for wanting to pursue seeking disability, but I think your key statements are as follows:

1. "I was diagnosed a year ago next week and my levels have remained quite

good. The lowest hey had ever been was 350 which is when we started

meds."

In that case, you're "only" HIV-positive. The folks who make the disability determinations will want a complete history of your lab work,

and if your CD4 count never dropped below 350, they're not going to be impressed. Unless you've had an AIDS-defining opportunistic infection, you can't even claim that you have AIDS. There's a big stumbling block right there.

2. "She feels that I should file for disability not because I am sick but in

order to stay well (a concept that appauls my primary care physician)."

I question the ethics of your counselor, and the fact that she "has been

in the industry 20+ years" only causes me to be even more disdainful. Disability is for those who are disabled -- those who are unable to work. The standard most frequently used is "100% disabled" meaning that one is unable to do any sort of work in any occupation. Your primary care physician will be asked to write on your behalf as part of your disability application. If you're lacking support there, you're going to

have difficulty getting a disability application approved.

3. "If I become unemployed because we close I am eligable for $528 a week

less taxes. Disability is $2292 a month and no taxes deducted.

Unemployment ends in 99 weeks and disability in 7 years."

But you must take into consideration that your chances of obtaining unemployment benefits is essentially 100% while your chances of obtaining disability benefits is virtually zero. $528 times 99 is a lot better than $2292 times zero.

4. "My job is very high stress and normally sicne I am healthy I would not even think about filing until I needed to."

You've said it yourself: you're healthy. You're not disabled currently. You may be forced to seek another job if your employer were to close down. Yes, that would suck, especially with the economy being the way it

is. However, economic justifications do not make a good case for disability. They make for a very poor likelihood, in fact.

5. "I know its a moral issue as well and it maybe quite a battle to get it becasue I am still well and the meds arew orking."

While it is a bit of a moral issue, it's more of a practical issue. Getting on disability isn't that easy, depending on the state in which you are located. In my own case, I had to prove that I was pretty sick and unable to function in order to obtain disability. If, as you say in your own words, you're still well, successfully getting on disability is

likely to be an unwinnable battle. I even had to show that I couldn't take care of myself, that I couldn't carry out the ordinary functions of

daily living. It doesn't seem you're anywhere near that point.

Finally you ask, "Any suggestions? " Unless your CD4 count is 6 and your

viral load is 800,000 like mine were at the time of my disability application, I'd advise abandoning the idea of applying for disability. You don't have the support of your primary care physician, and it's going to be essential to have him on your side to successfully pursue an application.

If your job is at risk, then I think your best option is to work up a resume and start hunting for another job. It's true what they say about it being easier to find another job when you already have one. Don't wait until you're unemployed before you start looking. It's especially important to move from one job right into another because then the insurer at your new employer won't be able to deny you coverage for your

pre-existing HIV condition. Continuous coverage is essential for that to occur.

The rules for getting on disability have changed in the past several years. At one point simply having an HIV diagnosis was sufficient to succeed with a disability application, but that's no longer the case. The folks who make the disability determinations are well aware of the current state of care for HIV/AIDS, and they know that unless you're already very, very sick, the chances of your staying well are reasonably

good. Unless you're prepared to lie, lie, lie on your application -- and that's a very, VERY bad idea -- and you find a new doctor who is willing to write letters about how disabled you are, I'd surmise that your chances of getting on disability are pretty slim. Your chances of finding another job, even in this rotten economy, are probably much better.

I'm sorry if this isn't what you wanted to hear, but it's what you need to know.

Please feel free to contact me directly if you have any additional questions.

Good luck.

Regards,

Nick

--

Nick

--

Nick

6811 Old Canton Road, Apt. 1008

Ridgeland, MS 39157

601-991-1164

thenickbellsouth (DOT) net

http://nicknicholas.net/

I was diagnosed a year ago next week and my levels have remained quite good. The lowest hey had ever been was 350 which is when we started meds.

I belong to a great support group and see a hiv councelor/psycholog ist who has been in the industry 20+ years. She feels that I should file for

disability not because I am sick but in

order to stay well (a concept that appauls my primary care physician).

I am having a real dilemma with this. You see my company (I have been with them 20+ years) has a long term disability policy that would cover me till I was 65 (I will be 58 this week) however there is a very strong

oliklihood taht after 103 years in business we may close our doors in the next few months due to the economy in which case there would be no disability policy to protect me and no medical coverage (no company = no

cobra).

If I become unemployed because we close I am eligable for $528 a week less taxes. Disability is $2292 a month and no taxes deducted. Unemployment ends in 99 weeks and disability in 7 years.

My job is very high stress and normally sicne I am healthy I would not even think about filing until I needed to.

I know its a moral issue as well and it maybe quite a battle to get it becasue I am still well and the meds arew orking.

Any suggestions?