By Scott B. Elkind, Esq.
Many disability policies contain a provision which offers rehabilitation services to claimants in order to return to work. A sample provision (from a Cigna policy) reads as follows:
Rehabilitation During a Period of Disability
If, while an Employee is Disabled, the Insurance Company determines that he or she is a suitable candidate for rehabilitation he or she may participate in a Rehabilitation Plan. The terms and conditions of the Rehabilitation Plan must be mutually agreed upon by the Employee and the Insurance Company.
The Insurance Company may require an Employee to participate in a rehabilitation assessment or a Rehabilitation Plan at our expense. The Insurance Company will work with the Employee, The Employer, and the Employer's Physician and others, as appropriate, to develop a Rehabilitation Plan. If the Employee refused to participate in the rehabilitation efforts, Disability Benefits will not be payable.
The Rehabilitation Plan may, at the Insurance Company's discretion, allow for payment of the Employee's medical expense, education expense, moving expense, accommodation expense or family care expenses while he or she participates in the program.
A “Rehabilitation Plan” is a written agreement between the Employee and the Insurance Company in which the Insurance Company agrees to provide, arrange or authorize vocation or physical rehabilitation services.
In all my years of doing these cases, I have seen only one case in which such services were offered to a claimant. This individual suffered from rheumatoid arthritis and had limited use of his joints, especially his hands. The insurer tried to find him work as a journalist/author. This attempt ended miserably. The claimant was hardly able to perform the work with the insurer making an even lesser effort at assisting him.
So, why don't insurers use this provision? The answer is simple. It is a sales job for the employer as it just sounds good. Who can argue with the premise of returning valuable employees to their jobs so as to keep a company productive?
The sad reality is that the insurer does not want to spend any money on the claimant at all. If they were to acknowledge a claimant's disability and cannot return the claimant to work at 80% of previous salary, the amount owed to the claimant can be significant and the insurer loses its capability to deny the claim on the basis on the claimant not being disabled.
Rather, the insurer will just deny the claim and hope that the claimant will either not pursue it or hire a unskilled counsel who cannot restore the disability benefits. This way, the benefit payment liability risk to the insurer is minimized.
Do not for one minute believe an employer really wants rehabilitation for their employee either. Most employees become disabled after many years of work and with advancing age. With age comes experience. With experience comes increased wage. The employer's best interest is to reduce payroll at any time possible. The second disincentive for employee rehabilitation is an employer's consent to providing accommodations to the employee. By doing so, the employer becomes beholden to the new arrangement while potentially causing other employees to become resentful of the special treatment afforded to the claimant. Given these two strong countervailing premises, employers are reluctant to demand any rehabilitation for their employees.
Even when an employer has a skilled employee for which accommodations are offered, it does not prevent the insurer from denying the claim on the basis that the claimant has experienced some (miraculous) recovery so that the claimant can earn their previous level of income and allow the insurer to avoid further liability.
In any case, this rehabilitation plan provisions you see are not worth the ink used to write them. For this reason, make sure to seek an experienced counsel concerning representation in similar situations to prevent and/or address your disability rather than be subject to a series of claim denial which, if final, could be fatal to your receiving disability benefits.