Do I have to be currently employed to take advantage of ERS disability benefits?
Author: Attorney Lonnie Roach
Yes, short term disability (STD) and long term disability (LTD) benefits are for active employees only. They are not available to dependents or retirees.
What happens if I am only going to be out for a few months to recover from a surgery?
You probably qualify for STD. STD becomes payable once you have been certified as totally disabled by your doctor. There is a waiting period that must be met as well. Once you meet the criteria listed in this paragraph and receive approval from Dearborn National, STD benefits may be paid to you for a maximum of five months.
How much will I receive in benefits?
This can get complicated. In general, your STD benefit will be 66% of your Insured Monthly Salary. The maximum Insured Monthly Salary is $10,000.00. However, if you receive other benefits, the amount that ERS owes you is reduced. For example, ERS reduces the disability payment if you receive “other income” benefits from the Social Security Administration or from the Workers’ Compensation System, and others. If ERS offsets the payment that they owe to you by “other income,” it will do so based on 70% of your Insured Monthly Salary rather that 66% of your Insured Monthly Salary. The minimum benefit payable under the plan is 10% of the Insured Monthly Benefit.
The LTD benefit is 60% of your Insured Monthly Salary. ERS is entitled to offset the benefit payment by “other income” but, as with STD, must use 70% of the Insured Monthly Salary in the offset calculation. The minimum LTD benefit is 10% of the Insured Monthly Salary.
How long will I receive LTD benefits?
Benefits are paid to age 65 unless you are over 60 when you become disabled. If you are 60-64 when you become disabled, you can receive LTD benefits for up to 60 months. If you are 65-69, benefits are paid to age 70, or 12 months, whichever is greater. If you are over 70, benefits are paid for 12 months.
When do I have to file for LTD benefits?
You must submit your LTD claim form, including the doctor’s statement, within 12 months of the date you became totally disabled.
Is there a “pre-existing condition” clause in the STD/LTD plan?
Yes. If you received treatment, medical advice, medicine or prescriptions for your disabling condition in the three months prior to “total disability,” you have a “pre-existing condition.” If you have a “pre-existing condition,” your specific condition will not be covered for six months. You will then have to go through the waiting period before benefits will start.
What do I do if I have been denied?
The appeal process is complicated and tedious. If you receive a denial from Dearborn National, you may ask in writing that it reconsider the decision. If Dearborn denies the claim again, you must then file a grievance with the Employees Retirement System of Texas. The ERS grievance must be filed no later than 90 days from the date on Dearborn’s denial letter.
If I lose my appeal for ERS disability benefits, where will my case be decided?
If an employee decides to appeal an adverse determination by ERS, he can request that the case be set for a hearing on the merits at the State Office of Administrative Hearings (SOAH). The hearing will take place in Austin, Texas, no matter where the employee lives and works. The hearing will be conducted by an administrative law judge (ALJ). In preparation for the hearing, the employee is entitled to send written discovery to ERS, take depositions of relevant witnesses, and hire experts. Although the rules are somewhat different from litigating in state or federal court, the intent is to allow the employee a full and fair opportunity to prove his case. The burden of proof on all issues lies with the party seeking relief. TEX. INS. CODE § 1551.357(d) and ERS Rule § 67.55(b).
Unfortunately, the ALJ hearing doesn’t end the dispute. The ALJ decision is basically advisory. The ERS Board of Trustees makes the final determination. If the final determination by ERS is unfavorable, the employee has the right to seek judicial review. The suit will be filed and heard in Travis County, Texas. TEX. INS. CODE § 1551.359.
What does “Total Disability” mean?
During the first 24 months, ERS defines “total disability” as the inability of the employee, because of injury or sickness established by medical evidence based on objective clinical findings using current American Medical Association guidelines and certified by an Approved Practitioner operating within the scope of his or her licensure and practice, to perform the usual tasks of his or her occupation in such a way as to procure or retain employment. This is typically referred to as the “own occupation” period.
After benefits have been paid for 24 months, total disability will mean the inability of the covered employee, because of injury or sickness established by medical evidence based on objective clinical findings using current American Medical Association guidelines and certified by an Approved Practitioner operating within the scope of his or her licensure and practice, to perform the usual tasks of any compensated occupation for which the covered employee is reasonably suited by training, education, or experience, in such a way to procure or retain employment. This is typically referred to as the “any occupation” period.
Author: Attorney Lonnie Roach has been practicing law for over 29 years. He is Superlawyers rated by Thomson Reuters and is Top AV Preeminent® and Client Champion rated by Martindale Hubbell. Through his extensive litigation Mr. Roach obtained board certifications from the Texas Board of Legal Specialization. Lonnie is admitted to practice in the United States District Court - all Texas Districts and the U.S. Court of Appeals, Fifth Circuit. Highly experienced in Long Term Disability denials and appeals governed by the “ERISA” Mr. Roach is a member of the Texas Trial Lawyers Association, Austin Bar Association, and is a past the director of the Capital Area Trial Lawyers Association (Director 1999-2005) Mr. Roach and all the members of Bemis, Roach & Reed have been active participants in the Travis County Lawyer referral service.
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