APPLYING FOR BENEFITS

             Most plans require that employees apply for benefits within a certain time period after commencement of disability but no later than a certain specified time.  Usually the plan will specify a “grace period” of anywhere from 6 months to one year for submission of a late claim for benefits.  However, since the plan always provides that the plan has the right to have the claimant examined by its own chosen physician, a court may presume prejudice to the plan if the plan was not given the opportunity to have the applicant medically examined in a timely manner in cases where the severity of an injury is open to interpretation.  For example, claims of a soft tissue back injury may be highly subjective, but a claim of quadriplegia is highly objective so that an employer cannot claim to be prejudiced because it did not have an opportunity to have the employee examined earlier.  As long as the plan/insurer is not prejudiced, the Supreme Court has held that an employee may make a late claim.
             Many employees assume that making a Workers Compensation claim with the employer serves as a claim for LTD benefits since employer is on notice of the disability.   However, this assumption is not correct.  The employee must make a separate claim for LTD benefits typically by completing a claim form provided through the employer or by the insurer.  Additionally, many employees do not know whether or not the employer offers LTD benefits.  ERISA regulations require that  the employer must distribute a Summary Plan Description (SPD) to all employees describing benefits.  29 C.F.R. 2520.104b-2.   This document is a summary of all the benefits that the employer provides.  Many employees do not read the Summary Plan Description, but it is important to read this document.   Specifically inquire of the Human Resources Department as to the existence of an LTD plan or other disability benefits besides workers compensation benefits.  Where the terms of the Summary Plan description conflict with the plan document itself, a participant or beneficiary may be able to enforce the terms of the SPD.  Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317, 1321 (9^th Cir. 1995); Parker v. Bank America Corp., 50 F.3d 757, 763 (9^th Cir. 1995).