Author: Janet Thoman Green

When addressing issues of a patient's disability, it is important to have the context in which the disability is being reviewed. It would seem like a disability would be the same across all definitions. However, for the purpose of determining if a claimant is qualified as disabled in specific circumstances, various insurers and government agencies have developed separate criteria for disability.

Under the Americans with Disabilities Act, a person qualifies as disabled and may invoke the protections of that law if they meet the following definition:

The term “disability” means, with respect to an individual

(a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(b) a record of such an impairment; or
(c) being regarded as having such impairment.

42 USC 12111.

In contrast, private long-term disability policies may contain one of three definitions, such as:

Own Occupation: The inability to perform the material and substantial duties of your regular occupation. The insurance company will consider your occupation to be the occupation you were engaged in at the time you became disabled and will pay the claim even if you are working in some other capacity.

Income Replacement: Because of sickness or injury you are unable to perform the material and substantial duties of your occupation and are not engaged in any other occupation.

Gainful Occupation Coverage: Because of sickness or injury you are unable to perform the material and substantial duties of your occupation, or any occupation for which you are deemed reasonably qualified by education, training and experience.

It is possible to apply for and receive benefits under private disability policies but remain ineligible for some governmental assistance, such as Social Security Disability Insurance (SSDI). The two primary disability benefits administered by the Social Security Administration, SSDI and Supplemental Security Income, use the same criteria to determine disability and eligibility for benefits:

1. Is the claimant working?
   If the claimant is working and earns more than a specified amount ($900 per month for 2007), he or she will not be considered disabled. If the claimant is not working, go to Step 2.
2. Is the condition "severe"?
   The condition must interfere with basic work-related activities for a claim to be considered. If it does not, the claimant will not be considered disabled and is not eligible for benefits. If the condition does interfere with basic work-related activities, go to Step 3
3. Is the condition found in the list of disabling conditions?
   For each of the major body systems, the SSA maintains a list of medical conditions that are so severe that they are automatically considered disabling. If the claimant's condition is not on the list (does not “meet a listing”), then the condition is evaluated to determine if it so severe that it causes a comparable level of impairment. If it does not, the claimant is not considered disabled and is not eligible. If the condition is severe, got to Step 4.
4. Can the claimant do the work he or she did previously?
   If a condition is severe but not at the same level of severity as a medical condition on the list, then SSA will determine if the condition interferes with the claimant's ability to do the work he or she did previously. If it does not, the claim will be denied. If it does, go to Step 5.
5. Can the claimant do any other type of work?
   If a person cannot do the work he or she did in the past, SSA will determine whether the claimant is able to make adjustments and perform a different job. The SSA considers the medical conditions, claimant's age, education, past work experience and any transferable skills. If the claimant cannot adjust to other work, the claim will be approved. If the claimant can adjust to other work, the claim will be denied.

There are as many subtle definitions of disability as there are policies and programs to assist those with disabilities. Health care providers can assist their patients by clearly documenting restrictions of activities, subjective complaints and objective findings. While the provider cannot, and should not, anticipate what definition of disability will be important for a specific patient, clear documentation of the patient's condition, limitations and response to activity will allow the patient and his or her attorney to demonstrate, through the use of records, that specific disability criteria are met.

When asked by an insurer or agency to provide documentation to establish a patient's disability, the provider should pay close attention to the specifics of the question being asked. If, for example, the provider is asked to render an opinion regarding a patient's eligibility for Social Security, stating, “The patient cannot do their regular work” only answers one prong of the question. It is important to specifically address the question asked.

Legal counsel experienced in significant trauma and disability issues can assist patients through the various aspects of disability programs and coverage.