Long Term Disability 101: An Overview

Cleveland Disability FAQs

Long Term Disability Insurance and Short Term Disability Insurance have the potential to be two scary topics for individuals. These insurance policies are like many things in life, they are not missed until they are needed. Most of the time, individuals do not fully understand the language within the four corners of their disability insurance policies because they have never had to file a claim. Click here to learn about the critical information you need to know before filing a claim. The problem with that statement is that when an employee needs their disability benefits the most, they do not have the knowledge as to how to gather the information necessary to file a claim that has a strong likelihood of being approved. Because of this realization, we have put together a comprehensive guide on long term disability insurance and short term disability insurance. This guide will take you through the process of filing a claim for long term disability benefits and short term disability benefits all the way until you are inside a federal courtroom. Here is information you MUST know before going on Long Term Disability.

The process of filing for a disability claim is complex. Most people retain an experienced disability employee benefits attorney to help with filing a claim, appealing a denial, or providing representation in front of a federal judge. Find out what you need to know BEFORE filing an appeal. This process can be intimidating without experienced disability firms. The Cleveland, Ohio law firms of Liner Legal and Tittle & Perlmuter can offer help and support to those affected by injuries and illnesses leading to long term disability claims.

Michael A. Liner: www.linerlegal.com
Scott Perlmuter: www.tittlelawfirm.com

Contents

1. Types of Employee Benefits
     1.1 What is Long-Term Disability
           1.1.1 Requirements
           1.1.2 Example of How Long-Term Disability Works
      1.2 What is Short-Term Disability Insurance
      1.3 What is Social Security Disability and how Does it Factor into Employee Benefits?
      1.4 Other Employee Benefits – Health Insurance, Life Insurance, Accidental Death & Dismemberment Insurance, Vision Insurance, Dental Insurance, Pension and Other Retirement Plans
     1.5 What is ERISA? When is a Claim Governed by ERISA? When is a Claim Governed by State Law?
2. Filing a Disability Claim
     2.1 What Information Should I Gather for My Disability Claim?
     2.2 What is the Best Time to Submit a Claim?
          2.2.1 What Does it Mean to Have a Disability?
          2.2.2 Should I Talk to My Doctor about My Disability Claim?
3. Additional Aspects of Disability Insurance and Disability Claims
    3.1 What is the Elimination Period?
    3.2 How Long Will My Benefits Last?
    3.3 What Happens If I am Denied?
          3.3.1 What Could be a Basis for a Denial?
          3.3.2 Why is Social Media Important?
    3.4 How Do I Appeal a Denied Disability Claim?
          3.4.1 How Long Do I Have to Appeal?
          3.4.2 How Many Appeals Am I Entitled to Make?
4. Court Process for a Disability Claim
5. When and Why You Should Hire an Attorney
    5.1 Ways You Can Kill Your Appeal Without an Attorney

6. Keys to Remember When Filing a Disability Claim
6. Closing

What is Long Term Disability Insurance?

Long-Term Disability Insurance is a savior for many individuals throughout America. It allows workers who are injured by an accident, illness, or disease to receive a percentage of their salary after their short-term disability insurance runs its course. Once short-term disability insurance expires (see below), long-term disability will pay a percentage of your salary until you go back to work or for a duration as stated on your policy. In most cases, that duration is through full retirement age. It is very important that you are familiar with your policy prior to submitting a claim. Insurance companies lean on the language in your policy when ruling on your claim.

It is likely that you are a part of a group long term disability insurance policy through your employer. However, it is important to note that insurance companies save money the quicker you return to work so it is important to treat with your doctor frequently to ensure when and if it is safe for you to return to work.

The biggest hurdle that you must overcome when claiming long-term disability is that you are actually disabled and have medical evidence to support that assertion. This generally comes from working with your doctor, asking questions, requesting documentation, and meeting with an attorney to discuss your options and further proceedings.

Please feel free to contact us if you are in need of representation during the process of filing a claim. We are happy to assist you!

Requirements for Long Term Disability Insurance

1. Pay For Your Disability Insurance

You must pay your premiums in order to keep your insurance current. Most employees are eligible to receive the insurance free through their employment; however, individual policies are available.

2. Full-Time Work

It is likely that your policy through your employer requires that you are a full-time employee to be covered under their insurance. You will need to review your long-term disability policy to see how your insurer defines “Full-Time.”

3. Elimination Period

The policy defines the elimination period; however, it is essentially the time between when your disability began and when you are eligible to receive benefits. The elimination period will vary from policy to policy, typically 90 to 180 days.

4. Do You Have Pre-Existing Conditions?

Insurance companies may try to fish for information in order to find a pre-existing condition, so they do not have to pay your claim. Most policies require you to be employed for one year before a claim for disability can be made on a pre-existing condition. A pre-existing condition is any condition that an individual has already received medical treatment for that occured before starting a new insurance plan.

5. Do You Have An Excluded Condition?

Again, you need to review your policy to determine what conditions are excluded or time limited from your policy. Some accidents or diseases may not be covered, or may be covered for a limited period of time.

Examples of How Long Term Disability Works

Unum Group created an illustrative situation to showcase how long term disability plans may work. Please be advised that coverage plans vary substantially.

“Bill was cleaning leaves out of his gutter when he fell off the ladder and hurt his back. A trip to the ER confirmed he had four herniated discs and would need intensive physical therapy before he could return to work. Bill’s Long Term Disability Insurance paid a percentage of his lost income, while he worked to regain his strength.”

Bill’s Long Term Disability Insurance paid 60% of his gross monthly income until he was able to return to work.

Annual salary: $69,600
Gross monthly earnings: $5,800
Monthly benefit: $3,480

He used the money to pay for:

– Mortgage Payments
– Child Care Costs
– Utilities
– Credit Card Bills

Source: https://www.unum.com/employees/benefits/disability-insurance/long-term-disability-insurance

Though all plans vary, above is a general idea as to how insurance benefits are paid once the claim is approved. Now that you have a general idea as to how a claim may be paid, continue below to learn more. Please be advised that it is beneficial to speak with a seasoned disability attorney prior to filing a claim to ensure you have the appropriate documentation in your file necessary for a successful claim or appeal. While no results may be guaranteed, an experienced disability attorney will know which pieces of information will be crucial for a possible approval of your claim. Please feel free to contact us if we can be of any assistance in filing your disability insurance claim.

What is Short Term Disability Insurance?

Similar to long term disability insurance, short term disability insurance pays a percentage of your salary should you become disabled and are not able to work for a short period of time as a result of an illness, accident, or disease. It is important to note that short term disability insurance is not workers compensation insurance, which covers you in the event you suffer a work-related accident. This timeframe for short-term disability insurance is generally from three to six months, at which point long term disability takes over when short term disability ended.

A key difference between long term disability and short term disability is the duration of the waiting period or elimination period. While the waiting period for long term disability is likely ninety days, the waiting period for short term disability will likely be a maximum of fourteen days.

The most common events leading to short-term disability include: Cancer, heart attack, stroke, diabetes, motor vehicle accidents, and other lifestyle choices.

What is Social Security Disability and how Does it Factor Into Employee Benefits?

Many long-term disability plans will require you to apply for Social Security Disability Insurance. Effectively, this allows the insurance company to offset their costs by what the Social Security Administration is willing to paying you.

You may have heard of Supplemental Security Income before and Social Security Disability Insurance is similar, but different. Social Security Disability Insurance (SSDI) is insurance for individuals who have worked for a certain number of years and have made contributions to Social Security throughout their tenure. The primary perceived benefit of SSDI is that an individual who receives SSDI for two-years will become eligible for Medicare. Thankfully, an individual who qualifies for SSDI has the ability to receive partial benefits for their spouse and children as well. This program assists many Americans with getting back on their feet. Insurance companies are able to take advantage SSDI in an effort to lower cost.

Other Employee Benefits – Health Insurance, Life Insurance, Accidental Death & Dismemberment Insurance, Dental Insurance, Vision Insurance, Retirement or Pension Plans

As detailed further below, this site is primarily directed at providing information regarding employer-sponsored disability insurance plans. Those disability insurance plans often come as a part of an employee benefit package which may include some or all of insurance coverages and other benefits such health insurance, life insurance, accidental death & dismemberment insurance, dental insurance, vision insurance, and retirement or pension plans.

If you are applying for long term disability, it is critically important that you educate yourself on how going on long term disability can affect your entitlement to, and eligibility for, those benefits. One very common issue involves conversion or portability of life insurance coverage.

Depending on how your plan is written, going on long term disability may trigger the end of your group life insurance coverage. Most people going on long term disability – because of their medical condition – cannot go out on the market and buy an affordable, practical life insurance policy. Fortunately, most group employee benefit plans offer the option to convert group life insurance coverage to an individual. Conversion of life insurance coverage means that you can keep your life insurance policy while you are on long term disability, and even after your employment terminates entirely. While many people exercising a right of conversion have to pay a monthly premium to maintain their coverage, those employees who leave work to go on long term disability are often eligible for a “Waiver of Premium.” If you are unable to work in any occupation (as defined under your plan), and your plan provides for a Waiver of Premium, you may be able to keep your life insurance coverage free of charge.  

This is just one example of the interplay between long term disability and other employee benefits. Employers usually task their human resources personnel with handling all issues related to employee benefit plans. However, employee benefit issues form just a portion of their HR job duties, and critical plan requirements can slip through their knowledge base. Employees should always take the time to request and read plan documents and summary plan descriptions to learn their own rights and responsibilities. Consulting with an attorney who is knowledgeable and experienced in long term disability, employee benefits, and ERISA (explained below) puts you in the best position to properly advocate for your benefits.

What is ERISA? When is a Claim Governed by ERISA? When is a Claim Governed by State Law?

ERISA is short for the federal Employee Retirement Income Security Act of 1974 and is regulated by the United States Department of Labor. Because it is federal law, it applies to employee benefits regardless of where within the United States you live. According to the Department of Labor, ERISA protects retirement savings from mismanagement and abuse, and clarifies that those in charge of those savings be held to a high standard – that is, they must act in the best interests of plan participants. It also requires transparency and accountability, ensuring that participants have access to information about their plans. More than half of America’s workers earn health benefits on the job, and ERISA protects those too, as well as other employee benefits.

ERISA governs the handling of your long-term disability insurance (and short-term disability, life insurance, health insurance, accidental death & dismemberment insurance, dental insurance, vision insurance, pension plans, and other retirement plans) when that insurance was provided to you or made available to you by your employer.

ERISA does not govern the handling of those insurance coverages when you purchase it on your own, and it was not made available to you as a result of your employment. In those cases, any disputes about the handling of your insurance policy or claim will be governed by the law of the state in which you live and took out the policy.

Source: https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/fact-sheets/what-is-erisa

What Information Should I Gather for My Disability Claim?

The complete ins and outs of employee benefit plans are required to be set forth in “plan documents.” A long term disability plan document is a long, complex explanation of every aspect of the plan – what is covers, how you become eligible and ineligible, what benefits it provides, etc. The plan document is usually unwieldy and confusing even to insurance representatives and lawyers.

Thus, ERISA requires that the most important portions of the plan are set forth in a document called a “summary plan description,” often referred to by the acronym SPD. The summary plan description tells participants what the plan provides and how it operates. It offers a layman’s explanation as to when an employee can begin to participate in the plan, how service and benefits are calculated, when benefits becomes vested, when and in what form benefits are paid, and how to file a claim for benefits.

ERISA requires that a plan administrator (depending on the plan either the employer, a third-party administrator, or the insurance company) provide to a participant, a beneficiary, or the participant/beneficiary’s personal representative upon written request:

The formal plan document, including all amendments:

– The latest updated summary plan description, including all summaries of material modifications
– The latest or final annual report (if any)
– An applicable collective bargaining agreement (if any)
– The trust agreement (if any)
– Any other contract instrument under which the plan is established or operated

Under ERISA Section 502(c)(1), administrators have 30 days to provide the requested material, or face potential penalties of up to $110 per day.

These documents are the best way to educate yourself about how to protect your rights. If you plan to consult with an attorney, obtaining an SPD and plan document before your meeting can ensure that your meeting is as productive as possible.

When is the Best Time to Submit a Disability Claim?

First and foremost, if you are disabled and have been told by a doctor that you are not able to return to work, that is the time to submit a claim. Prior to submitting a claim, you should familiarize yourself with your long-term disability insurance policy, or ask your employer. Generally, this policy will provide you with the exact definition of what is considered to be a disability and outline what it means to be totally disabled. You are likely to be found to be totally disabled if you are unable to substantially perform the duties of your occupation.

Many policies outline that you are not able to submit a claim for disability if you are currently on the payroll of your employer. That can be difficult for many individuals to understand as there is security in remaining an employee despite not being able to work.

What Does it Mean to Have a Disability?

The term “disability” is defined by the policy in various ways. As a guideline, a disability is likely to be established when for the first twenty-four month, an employee is unable to perform the material duties of their own occupation. In addition, for the period after the first twenty-four months, the employee must be unable to perform ANY occupation for which they are qualified based on education, training, and experience.

Courts have addressed the issue presented and show how every plan may be different. For example, in Black & Decker Disability Plan v. Nord, the plan defined disability asthe complete inability … of a Participant to engage in his regular occupation with the Employer.”

Our 6th Circuit addressed a disability issue in Curry v. Eaton Corp., in which the Eaton plan described a disability as “During the continuation of such total disability following the first 24 months, you are totally and continuously unable to engage in any occupation or perform any work for compensation or profit for which you are, or may become, reasonably well-fitted by reason of education, training or experience—at Eaton Corporation or elsewhere.”

As has been consistently reiterated throughout this guide, you need to review your individual disability plan for a definition of disability and ask questions of your doctor that will put you within the category. Please feel free to contact us if you have any trouble obtaining the information needed to file a disability claim.

Should I Talk to My Doctor Regarding My Disability Claim?

Yes! You should definitely talk to your doctor regarding your disability claim. Your physician will likely be the key individual with which the insurance company consults during your claim. Your insurance company will speak with your doctors regarding your disability and how it may affect your daily life and occupation. You should speak with your doctor as soon as possible as to whether he or she believes you are disabled as defined in your policy. Ensure that you are asking the right questions and they pertain to your disability in order to be able to showcase an appropriate record. Your doctor is working in your best interest and should be happy to help you.

It is also appropriate to inform your doctor that disability insurance companies may be calling him for information. If your doctor does not believe you have a disability, it is perfectly legal to obtain a second opinion from another physician. It is basically impossible to gain any benefits nor win any appeal without a doctor supporting your disability.

What is the Elimination Period?

The elimination period is the period of time between the onset of a disability, and the time you are eligible for benefits. Effectively, it is the time you must wait before the disability insurance company will pay your benefits. This period can range from 90 to 180 days. Policies will generally be cheaper with a longer elimination period; however, the cost of a long term disability insurance plan is likely only a concern if you have a private individual disability policy.

The primary factor to remember is that the elimination period does not begin on the date an individual files a claim, but the date the individual was diagnosed with the disability. Additionally, remember that it is possible that in the event your claim is approved, your benefits check may not arrive until a month after your elimination period has ended. This is important when deciding how to budget for the near future.

Lastly, the elimination period completely differs for short term disability and long term disability thus making the review of your policy crucial.

How Long Will My Benefits Last?

Yes! You should definitely talk to your doctor regarding your disability claim. Your physician will likely be the key individual with which the insurance company consults during your claim. Your insurance company will speak with your doctors regarding your disability and how it may affect your daily life and occupation. You should speak with your doctor as soon as possible as to whether he or she believes you are disabled as defined in your policy. Ensure that you are asking the right questions and they pertain to your disability in order to be able to showcase an appropriate record. Your doctor is working in your best interest and should be happy to help you.

It is also appropriate to inform your doctor that disability insurance companies may be calling him for information. If your doctor does not believe you have a disability, it is perfectly legal to obtain a second opinion from another physician. It is basically impossible to gain any benefits nor win any appeal without a doctor supporting your disability.

What Happens if I am Denied?

If your claim is denied, you will receive a denial letter from the insurance company. It is imperative that you read this letter thoroughly and provide it to your attorney if you have hired one at this time. Your notice of denial will contain:

– The specified reasons for your denial;
– Phrases and provisions of your plan on which your disability denial was based;
– Any additional information needed to supplement an existing claim and why the information is needed.
      Please make sure that if you see this type of language to reply immediately. While this means your disability claim was denied, it is easier to have it overturned if the insurance company is simply asking for supplemental material.
– Appeal deadlines and procedures;
– Information involving your right to receive documents that were recorded to your claim;
– Any company policy and/or protocol relevant to the insurance companies decision to deny your claim; and
– An acknowledgement of your right to bring a lawsuit in federal court under Section 502(c) of ERISA following the denial of any such appeal.

What Could be the Basis for an Denial?

The basis for a denial comes when the disability insurance company simply does not believe you are disabled. Rule #1 is not to lie! Check your social media pages and make your accounts private. Insurance companies will hire private investigators or establish surveillance around areas in which they know you frequent. They also use indiscreet ways such as calling you directly to inquire about a possible side business.

For example, there is a story of an individual who was seen at his second home putting a new engine into his car. The insurance company had a camera set up across the street, with the permission of the landowner, in order to place the allegedly disabled individual under surveillance. The issue many individuals have with this process is that it may seem like an invasion of privacy. If you are conducting strenuous activity outside of your home, in plain view, there is a good chance the insurance company will have it on video.

Please feel free to contact us if you believe you have been wrongfully denied disability benefits.

Why is Social Media Important?

First and foremost, do not lie to the insurance companies. Lying will come back to bite you and you could actually be asked to repay money paid to you for filing a false claim.

Social media posts are how the majority of our clients get into trouble. Insurance company’s social media mining services are extensive. They will spend a lot of time rummaging through your Facebook pictures, Twitter feeds, and Instagram posts. The last thing you need when you are trying to become eligible for disability benefits is a picture of you running a 5K, dancing at a wedding, or tweeting about how you just went hiking. Insurance companies will use this information as cause to deny your claim and legally they have a right to do just that.

Tips for a good Facebook Profile:

– At the very least…make your profile private.
– Review your pictures for strenuous activity after your accident. Social media pages are rarely indicative of a disability and photos may be taken out of context.
– Continue to monitor photos in which you are tagged.

How Do I Appeal a Denied Disability Claim?

Appealing a denied disability claim may seem tricky, but with the help of a seasoned disability attorney, it is rather simple. The most important thing to remember is that solely drafting a letter is not enough. To put it in perspective, an administrator has denied you claim and as such, knows that you believe your claim should not have been denied. Think about it, you are asking a big insurance company to overrule their own decision and re-evaluate your claim. It is not an easy task. A successful appeal will likely require detailed medical information, testimony and affidavits from doctors, and literature regarding the disability you are claiming and the symptoms of said disability.

Another feature of a strong appeal would be a letter from specialists who truly know the substantial nature of your disability. These specialists – which could include physicians or such consultants as vocational, will have likely performed physical and mental evaluations and would be able to support your disability claim. An appeal is difficult to win alone. An experienced disability or ERISA attorney will be crucial in your pursuit to get your denial overturned.

How Long Do I Have to Appeal?

If all or part of your claim is denied, you have the right to request an appeal. You are always guaranteed at least one appeal per ERISA and you likely have the option to request a voluntary second appeal. Check your policy first. It is important to exhaust all of your administrative remedies prior to bringing a lawsuit. This allows you to be compliant with the law and have the opportunity to stack the administrative record with relevant evidence that paints you in a good light for the judge.

So, if all or part of your claim is denied, you must request an appeal in writing within 180 days of the date you receive notice of denial. It is imperative that you read your denial letter carefully in order to file an appeal. Additionally, the address to which you should mail the appeal will be within your denial letter.

The appellate process is where you will be strongly advised to hire a disability attorney in your area. The appeals process for any agency is always complicated. You need to ensure that you have the appropriate documentation at your fingertips in order to remember your doctor’s names, hospital names, dates of visits, tests completed, and many more. A seasoned disability attorney will be able to recognize the flaws in your initial claim and improve your appeal for a better chance at having it granted. The deadlines can sneak up on you and you do not want to be caught having to complete the entire process over again because of being a day late on a document.

How Many Appeals of my Disability Denial am I Entitled to Make?

If all or part of your claim is denied, you have the right to request an appeal. You are always guaranteed at least one appeal per ERISA and you likely have the option to request a voluntary second appeal. Check your policy first. It is important to exhaust all of your administrative remedies prior to bringing a lawsuit. This allows you to be compliant with the law and have the opportunity to stack the administrative record with relevant evidence that paints you in a good light for the judge.

So, if all or part of your claim is denied, you must request an appeal in writing within 180 days of the date you receive notice of denial. It is imperative that you read your denial letter carefully in order to file an appeal. Additionally, the address to which you should mail the appeal will be within your denial letter.

The appellate process is where you will be strongly advised to hire a disability attorney in your area. The appeals process for any agency is always complicated. You need to ensure that you have the appropriate documentation at your fingertips in order to remember your doctor’s names, hospital names, dates of visits, tests completed, and many more. A seasoned disability attorney will be able to recognize the flaws in your initial claim and improve your appeal for a better chance at having it granted. The deadlines can sneak up on you and you do not want to be caught having to complete the entire process over again because of being a day late on a document.

DISTRICT COURT PROCESS

First and foremost, please note that the Court Rules may differ from jurisdiction to jurisdiction. Thus, the information within this website is applicable chiefly to the District Courts of Ohio, Tennessee, Kentucky, and Michigan.

After you have exhausted all of your administrative remedies as required by law, you have a right to take your set of facts to Court. During this process you can almost guarantee that you will be served a Motion for Judgment by the Defendant. We will delve into a Motion for Judgment further below. The best thing we can advise for you to do at this point is to hire an attorney. Attorneys that specialize in long-term disability claims have years of experience in handling federal court cases. From meeting deadlines pursuant to the statute of limitations to arguing motions in front of the judge, it is likely that an attorney will be a benefit.

Administrative Remedies Must Be Exhausted before a Lawsuit is Filed. What does this Mean?

Disability plans provide certain procedures for appeals when the claim is initially denied. The safe rule of thumb is to completely follow all the steps dictated by the plan document in order to file your claim in federal court. If your Long Term Disability Plan is a group plan provided by an employer, the law requires you to exhaust any and all administrative remedies prior to filing a lawsuit. This is a good rule! Why go straight to court when you may possibly resolve this claim quicker and cheaper than going through the court system? That is why, even if your plan is not through an employer, it is a good idea to appeal. There is no sense in wasting opportunities to resolve the matter. If your appeals are denied, we are happy to help you in federal court.

What is the Statute of Limitations for a Long-Term Disability Case?

First, if you are asking a question about the statute of limitations on a long term disability case and have not hired an attorney, you need to do so now. The statute of limitations could start much earlier than you expect.  To determine the statute of limitations, you need to review your plan. Usually, the plan will say how long you have to bring a lawsuit in the event your disability appeal has been denied. The limitations period may run sooner depending on when the claim was filed.

How will I know the Statute of Limitations if I do not have a Lawyer?

An insurer and/or administrator is required to clearly identify the time period for filing lawsuit in its denial letter. Essentially that means that there are occasionally arguments that you can make if you are past the contractual deadline if they did not specify the deadline in their letter.

The Mechanics of the Case

Once your case is filed in Federal Court, the timeline moves quicker than most in litigation. The case will move to a Motion for Judgment on the Administrative Record. Both parties will request that the Court grant them “judgment on the administrative record.” This means you are appealing the denial of benefits – saying that the administrator made a mistake in denying your claim. A plan administrator acts arbitrarily and capriciously when it “engages in a selective review of the administrative record to justify a decision to terminate coverage.”

The administrator is the insurance company approving or denying your claim. When someone acts “arbitrarily and capriciously” it means that an individual made such an unreasonable decision, that any reasonable person could not have come to the same conclusion using the same evidence.

Generally speaking, the Court is only able to consider the evidence that is included in the administrative record. This means that the Court may only consider facts in evidence that were presented to the plan pre-suit. This is why we will advise you to request all medical documentation and limitations in your abilities prior to any lawsuit. Based on the above, it is a positive aspect of the law that you are required to exhaust all administrative remedies prior to trial.

What is Meant by a Standard of Review?

During this process, you will likely hear a phrase called the “standard of review.” The standard of review in an appeal of a long term disability denial lawsuit is usually whether the administrator’s decision was arbitrary and capricious – i.e. “the result of a deliberate, principled reasoning process and supported by substantial evidence.” As you can imagine, this is difficult standard to meet. That is why many of the claims are denied. Basically, you have to prove that an unbiased, neutral evaluator could not have reached the same conclusion. The standard itself is why you need a seasoned attorney at your side to advocate for you.

A More Lenient Standard

There is a somewhat more lenient standard used when the administrator deciding whether the claim is approved is also the one paying the benefits. Courts have said that there is an inherent conflict of interest in these cases. As expected, the representative of the corporation who would have to pay the benefit is going to want to deny the claim in an effort to save money. The arbitrary and capricious standard still applies; however, the reviewing court looks to see if there is evidence that a possible conflict somehow influenced the administrator’s decision to deny the claim. If the court finds a conflict, they have the authority to overturn the administrator’s decision.

The Final Decision in a Long Term Disability Case

That’s the whole case – You or your representative file the Motion for Judgment on the Administrative Record and the other side does the same, then the judge rules for one side or the other. If you lose, the only place you can go is the Court of Appeals. Unfortunately, cases worth sending to that level are very few and far between. Sometimes it can be more expensive to bring the appeal.

When Do I Hire an Attorney During My Disability Dispute?

This is probably the biggest question weighing on your mind. Why do I hire an attorney? An individual who is unsure of what to do during a disability claim should hire a disability attorney immediately.

It is imperative to hire an attorney as soon as possible, because the administrative record of your disability claim that your insurance company views to appeal or deny your claim, is the same one that is placed before a federal court. If you are missing medical records or other evidence of your disability in the administrative record when it goes to your insurance company, those same documents will be missing when if it goes to court. That means that a judge may only consider what evidence you have already placed in the record. An attorney will advise you as to what information to include and how to go about retrieving it.

For example, evidence includes all relevant medical records, including physician notes, radiology and surgical reports, emergency room records, prescriptions, and treatment options. If any of the aforementioned is excluded, you need to request these records from your physician and send them to your insurance company immediately in order to complete your disability record.

If you are looking for disability attorneys near you, please feel free to contact us. Both firms represented on this site have years of experience fighting for the rights of individuals seeking disability benefits to which they are entitled.

Ways You Can Kill Your Appeal Without an Attorney

1. Ignore and/or Are Unsure of Appeal Deadlines

The number one way individuals kill their long term disability claim is when they ignore and/or are unsure of the appeal deadlines. In the majority of cases, an individual has 180 days to gather enough evidence in order to make a strong argument on appeal. One thing that an attorney will be able to tell you that your administrator will “forget” to tell you is that this appeal is the last opportunity to add anything to the record of which you may want to place in front of the court. Do not miss your deadline to appeal and thus forfeit the opportunity to add additional evidence into the record in case your claim ends up in front of a federal judge.

2. Fail To Request Your Insurance File

Many individuals do not know that they can request their insurance file from the long term disability insurance company prior to their appeal. The insurance companies do not want you to be on an equal playing field during your appeal and thus will likely not offer your file to you. You will not receive this file unless you ask. While your denial letter will provide you with a vague reason as to the nature of your denial, the disability file will contain substantially more information that will be useful to you in drafting your appeal.

Your file is not simply regurgitated information that you likely already know, it will include doctor’s reports and testimony as to the nature of your disability, expert opinions on your disability, and any surveillance information that was gathered and utilized in denying your claim. This is information you would not receive if not for your requesting your file and thus it is crucial for your appeal.

3. Fail to Speak With Your Treating Doctor

Think about it this way, the individual who knows the most about your disability and how it will affect your daily life is your treating physician. You would be surprised at the number of individuals who fail to speak with their doctor regarding their long-term disability claim. Rest assured, the insurance company will contact your doctor and ask him to explain the magnitude of your alleged disability and how it affects your ability to work in your occupation. Additionally, if you do not put your doctor on notice that the insurance administrator may be calling, there is a strong likelihood the doctor may not take the call. Without your doctor’s assurances that you are substantially disabled within the definition of your policy, you can essentially guarantee that your claim and subsequent appeal will be denied.

4. Fail to Speak with a Long-Term Disability Attorney

Please contact an attorney the minute your long-term disability claim is denied or if you are thinking of filing. As stated above, the crux of an appeal is meeting deadlines and gathering enough information in order to present a sufficient record for appeal. By attempting to appeal your denial without the assistance of an attorney, you can practically guarantee there was some evidence or information left out of the record that could benefit you in your appeal, and further, in front of a judge. Once the internal appeal is concluded, the record is sealed and no other evidence may be added. This fact is incredibly beneficial to the insurance company. At this point, they are likely taking a breath of fresh air because they know what evidence against which they are working.

Keys to Remember when Filing a Long Term Disability Claim

Know the Language of the Plan

First and foremost, you need to know exactly what language is in your disability plan. Disability plan administrators do not have the authority to substitute their own definition of “disabled” in place of the one outlined in the plan to which you have agreed.

For example, an administrator may try to use phrases such as “the fact that a claimant is able to engage in sedentary work is an appropriate consideration in some cases,” when it is not. This is because your plan may explicitly state that a participant is disabled so long as “he is unable to perform all of the material and substantial duties of his occupation.” If you are unable to recognize the exact language of your plan, you may let that error slide leading to the denial of your claim, appeal, and possible unfavorable ruling in your case.

Ensure the Administrator Assesses the Requirements of your Job

Additionally, an Administrator must actually assess the requirements of the plaintiff’s job. We understand that job duties are not all-encompassing and you cannot simply take the duties of one occupation and place them under an umbrella of another occupation. If that were the truth, the requirements of a disability between a firefighter and a librarian would be the exact same. Each career is different and the administrator must take that differentiating factor into account.

Do not Let the Administrator Reject your Doctor’s Opinions without Good Reason

Siding with one side’s doctor over the other isn’t arbitrary and capricious, but disregarding reliable evidence showing disability in favor of less reliable evidence can be arbitrary and capricious. For instance – rejecting a treating physician’s opinions without sound medical basis for doing so. You must remember that your Administrator is not a doctor and must take the doctor’s opinions into consideration when determining whether to deny your appeal. Generally, the administrator does this; however, you would be surprised how many companies set the physician’s opinions aside. This is why it is important that you have copies of all of your medical records in the event something does not line up with what your doctor has stated.

Inform your Lawyer of Failure to Consult Medical Professionals with Relevant Expertise

Again, it is not unheard of for the administrator to step outside the bounds of his or her expertise and ignore the doctor’s opinions. In the event that this occurs, you have a strong argument to surpass the burden placed on you by a Court and receive your benefits. As stated above, it is important to have the doctor give you a good examine and you are within your rights to obtain a second opinion for another physician when claiming disability.

Ignoring Parts of the Evidence or Making Incorrect Factual Assertions can be Arbitrary and Capricious

Obviously, the Administrator is supposed to take the entire file into account when analyzing your claim. Unfortunately, in an effort to save money, some administrators ignore parts of evidence that would be detrimental to their position. To play devil’s advocate, sometimes they just miss something; however, ignoring evidence can be grounds for an arbitrary and capricious decision.

Additionally, there is a chance that your administrator may make an incorrect factual assertion. Facts are the basis for each claim and if your administrator is deliberately making an incorrect factual assertion, you have a good claim to overcome the standard of arbitrary and capricious. This means it is important to know the ins and outs of your claim, and another reason why it is nice to have an Ohio disability attorney fighting for your interests.

When your Disability Stems from Pain – Failure to Perform a Physical Exam and/or a Functional Capacity Evaluation can be Arbitrary and Capricious

It should come as no surprise that if you are in pain, you should be given an physical exam. Many instances of pain can hinder your performance and make you physically unable to perform your occupation. Should the administrator not perform an evaluation of your abilities, especially in instances involving pain related from an accident, there is a possibility that the court may rule in your favor. While no guarantee, it is important to consult with an attorney to ensure you are aware of all of your rights moving forward. Please contact us if we can help you.

What if your Disability Stems from Mental Illness?

Generally, insurance companies think of a disability as a physical characteristic, which renders the individual unable to complete the duties of his or her occupation. Though some insurance companies believe this statement, the federal government does not. Mental health conditions such as depression, schizophrenia, anxiety, and many others may limit your ability to perform the duties of your occupation and thus entitle you to disability benefits. The issue for individuals seeking to recover disability benefits on account of their mental health disorder may be accurate record keeping and ongoing documentation. It is important to understand the symptoms and signs for which insurance companies are looking and ensure that you have met with your mental health professional to allow him or her to diagnose you with the disorder.

Think about it in correlation with crime shows you have seen on television. How many times have you seen and/or heard of an individual plead insanity when committing a crime? In order to plead insanity, the alleged individual’s representative must prove that the individual is in fact insane and not just putting up a front in order to obtain a successful ruling by the Court. It is basically the same when trying to receive benefits on account of a disability. One must show that their mental health disability is debilitating enough to severely limit their ability to work.

According to the Anxiety and Depression Association of America, anxiety disorders are the most common mental illness in the U.S., affecting 40 million adults in the United States age 18 and older, or 18.1% of the population every year. It’s not uncommon for someone with an anxiety disorder to also suffer from depression or vice versa. Nearly one-half of those diagnosed with depression are also diagnosed with an anxiety disorder. The most commonly diagnosed form of depression is Major Depressive Disorder. In 2015, around 16.1 million adults aged 18 years or older in the U.S. had experienced at least one major depressive episode in the last year, which represented 6.7 percent of all American adults. Depression is the leading cause of disability in the United States among people ages 15-44.

Do not be afraid to submit a claim for disability if your mental health severely limits your ability to perform the duties of your occupation. Contact us today to see if you have a possible claim!

Source: https://adaa.org/about-adaa/press-room/facts-statistics

https://www.nimh.nih.gov/health/statistics/major-depression.shtml

Doing a File Review without Meeting with you can Form Grounds to Overturn the Decision

Insurance companies are generally very meticulous in covering themselves when denying your claim. With mental health disabilities, insurance companies may forget to engage in a personal meeting with you in order to gauge your mental health. This generally happens because the administrator of your claim is a major insurance company and just lets this requirement slip through the cracks. As such, if the insurance company fails to meet with you while conducting a file review, that action may rise to the standard of arbitrary and capricious rendering their denial of your claim reversible by the Court.

Again, it is important that you have a sufficient record of your mental health disability including but not limited to, reports from your psychiatrist or psychologist, affidavits from friends, family, employers, and others witnesses, and your own timeline that could be evidenced through a written journal or day to day notes.

Side Note: Many plans contain an exclusion where disability is caused by or contributed to by mental illness. In those cases, the claim administrator must consider the physical ailments entirely separately from mental illness when rendering a decision.

Is my SSDI Finding Binding on the Court?

The short answer is no, but a thorough evaluation of your claim should include review and consideration of any SSA determination. If the plan requires you to file for Social Security Disability Insurance first, it must consider the finding of your disability by Social Security Administration in its evaluation of your long term disability claim. In some instances, a SSDI determination in your favor may be too old to be of any significance to your claim. Some courts determine SSDI rulings that have occurred a year or further in time from your disability claim are insignificant to your current claim.

Likewise, it is imperative that you understand the SSDI application procedures and put a good-faith effort into qualifying for SSDI with the knowledge that it could have an impact on your long term disability claim.

What Happens if I Win in Court?

As typical with Court matters after a decision has been rendered, the losing side will wish to settle in order to avoid an appeal. This is no different in the world of disability insurance claims. If you receive a favorable ruling in court, the plan will likely attempt to settle. Again, this is a step in which it is crucial to have the aid of a seasoned disability attorney. Do not get taken advantage of by an administrator telling you that there is no way you are going to recoup money and that you should take what they are offering. Hire an attorney and allow them to negotiate on your behalf.

If there is no settlement, the Court has two options: (1) Send your disability claim back to the administrator to make a new ruling without the cloud of arbitrary and capricious conduct; or (2) grant you benefits. In most circumstances, the file will be sent back to the administrators unless there is unequivocal evidence that you should be granted the benefits.

Closing

Thank you for reading and we hope that this long term disability information has been helpful. Please feel free to contact us if we can be of any assistance in your disability claim process.

The content provided on this page is brought to you by experienced long term disability lawyers, Michael A. Liner and Scott Perlmuter.

Michael A. Liner is proud to have been selected by his peers as one of the best Social Security Disability lawyers in Ohio. With a commitment to providing incredible client service and a passion for tireless representation of his clients in their time of great need, Michael has helped his clients obtain tens of millions of dollars in disability benefits. https://linerlegal.com

Scott Perlmuter provides counsel for individual and nationwide classes of employees deprived of fair wages and employee benefits, and excels in his position as a representative, confidant, and true advocate for his clients. For five consecutive years, Mr. Perlmuter has been named as a “Rising Star” by Super Lawyers, an accolade bestowed by peers in the legal community upon the top 2.5% of attorneys under the age of 40. https://tittlelawfirm.com/

Michael A. Liner: www.linerlegal.com
Scott Perlmuter: www.tittlelawfirm.com