Your Attempt To Return To Work Does Not Bar A Finding Of Disability

California case law is clear that an insured’s attempt to return work may not bar a finding of disability.  The California courts have long recognized that people who are struggling with pain and other symptoms will nevertheless attempt to work.  In recognizing that people may continue perform job duties that endanger their health, courts have stated that, in such instances, the test for disability is not what the insured actually did but what he could safely do.

One such case is Wright v. Prudential Insurance Company of America (1938) 27 Cal.App.2d 195, 214-217, in which the insured, an assistant engineer in the boiler room suffering from neurological difficulties, continued to work for more than two year after the onset of his symptoms.  Even though the insured continued to work “as best he could” during this two year period, the appellate court upheld the trial court’s judgment that, during that period, he was still totally disabled.  As the court stated:

“In the light of the medical and other evidence recited and in support of the trial court’s findings, we must, as we think, take it to be true that, as early as the fall of 1934, respondent’s ailment had reached a stage when, in the exercise of ordinary care for his own health, he ought to have ceased work, not temporarily only, but permanently and entirely. This he did not in fact do, but instead, continued, as best he could, to follow his occupation until February 16, 1936, and to receive compensation for such services as he in the meantime rendered.”  Id. at 214-215.

Even in ERISA cases, courts have recognized that an insured’s continuing to work does not preclude a finding of disability.  As the 7th Circuit stated in Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003), “A desperate person might force himself to work despite an illness that everyone agreed was totally disabling.”  Similarly, in Levinson v. Reliance Standard Ins. Co., 245 F.3d 1321, 1326 n.6 (11th Cir. 2001), the court stated that the insured’s status as a full-time employee does not constitute reliable evidence that he is able to perform his material job duties full time.  Other courts have stated that a return to work is not conclusive on whether the insured is disabled.  See Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974 and Lasser v. Reliance Std. Life Ins. Co., 344 F.3d 381, 391-392 (3d Cir. 2003)

If your insurance company have denied your claim where you returned to work full time due to economic necessity or with persisting symptoms, you likely have a basis for challenging the denial.  If your evidence is properly presented to the insurer or to the court, even if the insurer still persists in affirming its denial, you have a strong chance of reversing the insurer’s denial and receiving benefits.

Posted October 27, 2016

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