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Social security disability surgery refusal

Disability Benefits After Refusing Surgery

The question often arises as to whether you, as a patient, may be required to take certain medications that are prescribed by your doctor or to undergo some type of invasive procedure, such as an epidural nerve block injection into your spine, or spinal surgery for chronic back pain, before you are entitled to long term disability (LTD) benefits.

Consider the following scenario. You have severe back pain that disables you from working, and you have applied for LTD benefits. Your orthopedic surgeon agrees that you are disabled but recommends that you undergo a lumbar laminectomy to “fix” your back. He tells you that, while there are no “guarantees” of success, it his professional opinion the back surgery is likely to improve your back pain to the point that you can go back to work.

However, you have friends who have had back surgery that didn't work, and you don't want to take the risk that your back surgery won't work either. More than that, you are afraid of surgery and worry about potential complications of both the surgery and the anesthesia that will be required.

After thinking about it, you refuse to have surgery. Will that bar you from being approved for LTD benefits?

 The answer is, it depends.

Social Security Disability Benefits

The general rule is that you must follow treatment recommendations from your doctor, or you will not be eligible for Social Security Disability (SSDI) benefits. If recommended treatment includes back surgery, which your orthopedic surgeon reasonably believes will successfully treat your back condition and will restore your ability to work, then if you refuse to have the recommended surgery, you may not be eligible for SSDI benefits.

The Workers' Compensation Program is another government disability program that covers employees who are injured while at work.  The rule under the Workers' Compensation program is that you will forfeit disability benefits if you fail to follow a doctor's treatment recommendations.

However, if refusing a recommended treatment such as surgery is “reasonable”, your benefits may not be affected. For example, if the procedure is risky (e.g., back surgery), and there is a less than 50% probability of making you employable, then it is not likely an insurer will be successful in denying disability benefits for non-compliance.

Reasonable Exceptions for Non-Compliance

For both Social Security Disability benefits and worker's compensation benefits, there may be reasonable exceptions for non-compliance that include the following.

Religious Beliefs. If taking certain medication or undergoing surgery is against your religious beliefs, your non-compliance may be excused on that basis (e.g. Christian Scientist).

ConflictingRecommendations. If doctors disagree on what would be the best treatment, you will not be obligated to comply with a treatment recommendation from one of the disagreeing doctors.

Affordability. If you don't have medical insurance that covers the recommended treatment and cannot afford it, you may be excused for that reason. However, Social Security will require that you show proof that you have exhausted all options, including applying for Medicaid or seeking charitable care or public assistance programs, before your non-compliance is excused.

Amputation. If the prescribed treatment involves the amputation of one of your extremities, you may refuse to do that and not be barred from eligibility for LTD benefits.

Fear of Surgery. If your fear is well documented by health professionals, that may excuse you from having surgery.

Unusually Risky Surgery. Operations that are extremely risky (more so than ordinary surgeries), including open-heart surgeries, organ transplants, bone-marrow transplants, and unproven experimental procedures, may excuse you for non-compliance.

Mental Illnessmay excuse your failure to follow recommended treatment, if well documented by your treating doctor.

Long-Term Disability Benefits Under an ERISA Plan

Most ERISA disability benefit plans contain a provision that in order to be eligible for disability benefits, you must be under the regular care of a physician, keep regular appointments, and follow the doctor's advice.

If your treating physician strongly recommends surgery, which he or she believes will reduce your disability and allow you to go back to work, then it is possible the insurance company might challenge your entitlement to disability benefits by arguing that your refusal constitutes a failure to comply with your doctor's advice.

However, surgeries do not have a “guaranteed” outcome. Some are successful, and some are not. The risks of surgery may outweigh the benefits. And, not all doctors necessarily agree as to whether a patient should undergo surgery.

Therefore, as a rule, it is not likely that an ERISA insurer could successfully argue your claim should be denied by a refusal to consent to surgery.

Conclusion

While eligibility for long-term disability benefits may be jeopardized by failure to comply with treatment recommendations (e.g., surgery), there are legitimate excuses for treatment non-compliance, including conflicting recommendations from healthcare providers and fear of surgery.

At Law Med, we understand the legal and medical issues involved in SSDI and ERISA disability claims.

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