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If you qualified for and receive long term disability benefits in NY from your employer, this can represent a significant source of financial relief during your absence from work. However, there are still certain events that can put your benefits in jeopardy.

Your long term disability claim case manager is not your friend, your advocate, or your confidant. Don’t be fooled. No matter how empathetic, how friendly or how helpful your case manager appears to be, your case manager is your adversary. What you say, can and will be used against you in not only your claim, but in any legal proceeding in the future. Be careful.

Disability insurance companies will often ask you to describe a "typical" day. This is a trap for claimants who suffer from a condition with variable symptoms. If you have such a condition, you generally have "bad" days and "better" days. You may have days when you are feeling so bad that you must stay in bed all day, but you may also have days in which you could perform limited activities. You should tell the insurance company both what you can do on your worst days and what you could do on your better or best days. Be careful about the terminology that you use. Do not substitute "good" day for "better" or "best" day. When you describe a day as a "good" day it implies that on those days you are symptom free, which may not be the case.

The success of a long term disability claim is dependent on proving that your symptoms are disabling. A diagnosis of a particular illness is not enough. You will need to establish that the symptoms that you suffer prevent you from performing the duties of your occupation. How do you do this? By submitting objective evidence, such as MRI's, SPECT scans and other test results; the opinions of your treating physicians, and by providing a statement explaining how your symptoms make you unable to do your job. We recommend that a claimant keep a contemporaneous diary of all symptoms. For instance, if you had a migraine headache on Monday, that should be put in your diary. If you could not get out of bed on Tuesday, that also should be placed in your diary, and so on and so on. By keeping a diary, you can be very specific. Specificity makes your symptoms more credible and allows them to be viewed and evaluated in context.

Your client's disability insurance company schedules a Functional Capacity Examination (FCE); what do you do?

This is often a judgment call. On the one hand, an FCE almost always results in a bad result for your client. If your client is able to perform the tasks assigned, the examiner will pronounce that your client is not disabled. If your client is not able to perform the tasks, the examiner will pronounce that your client gave sub-maximal effort. On the other hand, if your client refuses to go to the FCE, the insurer will either terminate your client's benefits for failure to cooperate or will schedule an independent medical examination (IME). An IME is often harder to discredit later than the FCE. FCE's can often be discredited because: the protocol that they apply has not been subjected to peer review; asks claimants to perform tasks that are completely unrelated to their occupations; and are just downright unscientific. It is a great leap in logic to project from the ability to perform certain discrete physical tasks on one or two particular days to the ability to perform a full time occupation (that involves cognitive tasks and time pressures) on a consistent basis day after day.